Discipline System – Overview

WHAT IS THE STATE BAR?

The State Bar of California is an agency within the judicial branch of the government (Cal. Const. Art. VI, sec. 9.) While the power to admit and to discipline attorneys is an inherent power of the courts (Cal. Const. Art VI, sec. 1), the State Bar operates as the administrative arm of the courts in the exercise of this power (see rule 9.10, Cal. Rules of Court.)

Contrary to popular belief, the State Bar of California is not a bar association. It is an “integrated bar”; membership in the State Bar is not optional if you wish to practice law in California (Bus. & Prof. Code § 6125.) There has been no California State Bar Association since 1927, when the Legislature created the State Bar of California by passing the State Bar Act.

The State Bar can recommend suspension or disbarment for violations of those sections of the State Bar Act that provide for discipline, for violations of the California Rules of Professional Conduct (rules proposed by the State Bar and approved by the Supreme Court as provided in Bus. & Prof. Code § 6077) or for a criminal conviction (Bus. & Prof. Code §§ 6101 et seq.) The State Bar Court can impose a public or private reproval on the authority granted to it by the Supreme Court under rule 9.10.

COMPLAINTS

The discipline process most often starts with the receipt of a complaint to the State Bar. There is no standing requirement; anybody can make a complaint about a member. The State Bar operates a toll free complaint hotline to assist in the process of making those complaints.

STATE BAR INVESTIGATIONS

Complaints are not the only starting point for the discipline process. The State Bar has the authority to initiate its own investigations, designated as a “State Bar Investigation” or SBI.

REPORTABLE ACTIONS

A common source for SBIs are so called “reportable actions.” Lawyers are required to self-report certain events under Business and Professions Code section 6068(o), such as the imposition of judicial sanctions of $1000 or more (except for discovery sanctions.) Failure to self-report within 30 days is itself a cause for discipline. Banks are required to report dishonored items on attorneys’ and law firms’ client trust accounts (Bus. & Prof. Code § 6091.1.) Courts and insurers are also required to report certain events.

CRIMINAL CONVICTIONS

Criminal prosecution agencies are required to report the filing of an indictment or information charging an attorney with a felony or misdemeanor (Bus. & Prof. Code § 6101.)

STRUCTURE OF THE DISCIPLINE SYSTEM

The discipline system incorporates features from both the civil and criminal systems.

The State Bar’s prosecution office is called the Office of the Chief Trial Counsel (OCTC.) OCTC investigates allegations of professional misconduct and determines whether it has reasonable cause to file charges with the adjudication office of the State Bar, the State Bar Court.

OFFICE OF THE CHIEF TRIAL COUNSEL

The chief prosecutor and head of OCTC is the Chief Trial Counsel. The Chief Trial Counsel is appointed by the State Bar Board of Governors for a four year term, and must be confirmed by the State Senate. The current Chief Trial Counsel is Steven Moawad.

OCTC consists of four units: Intake, Enforcement, Probation and the Client Security Fund.

STATE BAR COURT

Discipline, admissions, probation revocation and other matters are adjudicated by the State Bar Court. State Bar Court consists of a hearing department of five judges and a review department of three judges. Both the hearing and review departments regularly have preo tem (temporary) judges to assist in their caseload.

Cases are venued in Los Angeles or San Francisco, depending on the county where the alleged misconduct occurred. The Los Angeles hearing department judges are Donald F. Miles, Yvette D. Roland, and Cynthia Velenzuela. The San Francisco hearing judges are Patricia McElroy and Lucy Armendariz.

The review department functions as the appellate department of State Bar Court and hears certain other matters in the first instance. The presiding judge of the State Bar Court sits on the review department, as do two part-time review judges. The presiding judge of the State Bar Court is Catherine D. Purcell; the other two review judges are Richard A. Honn and W. Kearse McGill.

 

THE PROGRESS OF A DISCIPLINE MATTER

The OCTC Intake Unit functions as the initial screener of potential discipline matters. Complaints, reportable actions and criminal conviction matters begin their life in Intake. Non-attorney complaint analysts in Intake evaluate complaints under the supervision of Intake deputy trial counsel. At this stage, those matters are designated as “Inquiries.” Intake determines if the complaint states a potential violation of the Rules of Professional Conduct or State Bar Act. If so, the matter is sent to the Enforcement Unit of OCTC.

The Enforcement Unit investigates the discipline matters forwarded by Intake, now designated an “Investigation.” Enforcement employs non-attorney investigators working under the supervision of deputy trial counsel. The attorney who is the subject of the complaint is known as the “respondent.” A respondent can receive notice of a State Bar complaint either at the Intake or Enforcement stage. Either a complaint analyst or an investigator, depending on the stage of the complaint, will write to a respondent and request a written response to the allegations of the complaint. In conduct its investigation, OCTC can also subpoena court documents, bank records and other documents, and can interview witnesses. OCTC can also conduct investigative depositions.

Respondent attorneys have a statutory duty to cooperate in this investigation (Bus. & Prof. Code § 6068(i)) but the respondent can assert statutory and Constitutional privileges, including the attorney client privilege and the privilege against self-incrimination if the conduct involves potential criminal guilt.

Attorneys also have the right to counsel (at their own expense) at any stage of the discipline process (Bus. & Prof Code § 6085.) It is always a good idea to consult with experienced discipline defense counsel when contacted by the State Bar regarding a complaint.

OCTC has prosecutorial discretion to determine which cases to prosecute and how to charge them. If it is determined that reasonable cause exists to file discipline charges, the deputy trial counsel assigned to the matter sends a written notice to the attorney of the State Bar’s intent to file discipline charges. This notice requests that the respondent attorney, and the attorney’s counsel, if any.

If the matter cannot be resolved by agreement, the respondent attorney can request the State Bar Court to conduct an Early Neutral Evaluation Conference (ENEC) before a State Bar Court judge or judge pro tem, in an effort to resolve the matter before disciplinary charges are filed. Even if the ENEC does not lead to a settlement of the matter, the evaluation by an experienced State Bar Court judge can be valuable for the respondent and respondent’s counsel.

If the matter cannot be resolved, OCTC will initiate a formal proceeding in State Bar Court by filing a charging document called a notice of discipline charges (NDC) and serving the respondent, at the respondent’s State Bar membership address, or on respondent’s counsel by certified mail. Personal service is not required. A response to the NDC must be filed in State Bar Court within twenty (20) days after service; otherwise the respondent’s default will be entered and the all charges will be deemed admitted. Relief from default is very difficult in State Bar Court. For this reason, it is essential to maintain a currents membership records address with the State Bar.

Litigation in State Bar Court is similar to civil litigation but the State Bar has its own Rules of Procedure; apart from discovery, the Code of Civil Procedure does not apply in disciplinary proceedings. However, there are certain limitations to discovery rules. For example, no discovery subpoenas may be issued and no depositions may be compelled without prior court order. Trial before the hearing department is similar to civil trials, except, of course, it is always a bench trial.

Following trial and submission of the matter, the hearing judge is required to issue a written decision within ninety (90) days. That decision can be appealed by either the State Bar or the respondent to the review department by a written request for review filed within thirty (30) days after the hearing judge’s decision or order is served.

Exhaustion of remedies in the review department in the State Bar Court is required to petition the California Supreme Court for review of the State Bar Court’s decision. Since 1991, the Supreme Court has granted review in only a handful of disciplinary cases.