By Neil J Wertlieb
Hopefully, this article is utterly irrelevant to you. In this month’s Ethics Spotlight, I turn the spotlight on the California State Bar disciplinary process. This article briefly discusses the various bases for which discipline can be imposed and then describes the process, from the filing of a complaint through the order imposing discipline.
The Rules of Professional Conduct (the Rules), adopted by the Board of Trustees of the California State Bar and approved by the California Supreme Court, are intended to regulate the professional conduct of attorneys and establish the standards for purposes of attorney discipline.[i] As a result, the failure to comply with any of the Rules is a basis for discipline. Discipline may also be imposed under the State Bar Act (Business and Professions Code Sections 6000, et. seq.), including for violations of court orders, oaths and other duties of an attorney,[ii] and for conviction of a crime involving moral turpitude.[iii] It is important to note that the purpose of discipline is not to punish attorneys, “but to inquire into the fitness of the attorney to continue in that capacity, in order to protect the public, the courts and the legal profession.”[iv]
Based on statistics gathered by the State Bar, the State Bar (through its Office of Chief Trial Counsel) opened nearly 17,500 cases of attorney misconduct in 2020 (a number reflecting just under 1% of the number of licensed attorneys in California), and filed notices of disciplinary charges (seeking the imposition of some form of attorney discipline) against 180 attorneys in State Bar Court. In 2020, 79 California attorneys were disbarred, and another 114 were suspended.
Some of the more common disciplinary violations have been the subject of other Ethics Spotlight articles and include:
- Failure to perform with competence (Rule 1.1)
- Lack of reasonable communication (B&P Code § 6068(m), Rule 1.4)
- Inappropriate termination of the attorney-client relationship (Rule 1.16)
- Conflicts of interest (Rules 1.7, 1.8, 1.9)
- Misuse of client trust accounts (Rule 1.15)
- Unauthorized practice of law (B&P Code § 6125, Rule 5.5)
In addition, an attorney can be disciplined for seeking an agreement from a client (or other person) that he or she will not be reported to the State Bar for professional misconduct.[v]
The disciplinary process generally begins with the filing of a complaint against an attorney.[vi] Unlike a civil suit (e.g., for attorney malpractice), there is no standing requirement, and the complaint against an attorney does not need to be filed by a client of the attorney or anyone else who was harmed by the attorney’s conduct. Although most complaints are filed by former or current clients, a complaint could be filed by opposing counsel, a court, a law enforcement or other regulatory agency, or a member of the public. Unlike the ABA Model Rules and the rules of nearly every other state,[vii] our Rules in California do not impose an obligation on an attorney to report another attorney’s misconduct.[viii] However, attorneys have certain self-reporting obligations. For example, an attorney must report to the State Bar the filing of three or more malpractice lawsuits against the attorney in a 12-month period, the entry of a judgment against the attorney in a civil action for fraud, and the imposition of discipline against the attorney by another jurisdiction.[ix] In 2020, there were 146 self-reported matters received by the State Bar.[x]
A complaint form, available in six languages, can be completed and submitted directly on the State Bar’s website or by mail. As noted on the website: “Anyone can file a complaint, and the process is free.” The complaint form requests information about the person submitting the complaint (the complaining witness), about the attorney being complained about (the respondent), and about the actions or omissions by the attorney that may warrant disciplinary action. Over 12,000 complaints were filed in 2020, a 9% decrease compared with the prior year.
Once a complaint has been received by the State Bar, an attorney in the State Bar’s Office of Chief Trial Counsel will conduct an initial review of the complaint to determine if it shows that the respondent attorney may have acted unethically in a manner that may subject the attorney to discipline.[xi] As part of this initial review, the State Bar may contact the respondent to advise him or her that a complaint has been filed. This initial review may take two to three weeks or longer to complete. If the State Bar attorney determines that the complaint does not describe ethical violations that constitute grounds for discipline, the complaining witness will receive a letter explaining why the complaint was closed. The complaining witness may request a review of the decision (a second review proceeding), by writing to the State Bar’s Complaint Review Unit. If the respondent attorney was advised that a complaint had been filed, the State Bar will also notify the attorney that the complaint has been closed.
If, on the other hand, the initial review determines that the complaint does describe possible ethical violations that constitute grounds for discipline, the State Bar will assign the complaint for investigation by an attorney and an investigator in the State Bar’s Office of Chief Trial Counsel. As part of the investigation, the complaining witness and the respondent will almost certainly be interviewed. The investigation may take six months or longer to complete.
In accordance with Business & Professions Code § 6068(i), it is the obligation of the respondent attorney to “cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself.” Failure to do so may be a separate basis for discipline against the respondent. The obligation to cooperate, however, does not require the respondent “to waive any constitutional or statutory privilege,” and any exercise by the respondent “of any constitutional or statutory privilege shall not be used against the attorney in a regulatory or disciplinary proceeding against him or her,”[xii] nor shall such exercise “be deemed a failure to cooperate within the meaning of subdivision (i) of Section 6068.”[xiii]
Unless and until formal charges are filed in State Bar Court against the respondent, all disciplinary investigations are confidential, and may not be disclosed pursuant to any state law, including the California Public Records Act. When warranted for protection of the public, however, the State Bar may, after private notice to the respondent, waive confidentiality and make certain information public confirming the fact of an investigation or proceeding.[xiv]
If the investigation does not find sufficient evidence of ethical violations that constitute grounds for discipline, the complaint will be closed, with notice to both the complaining witness and the respondent. Again, the complaining witness may request a review of the decision (a second review proceeding), by writing to the Complaint Review Unit.
If the investigation determines that there is evidence of ethical violations that constitute grounds for discipline, the State Bar will send a notice to the respondent of its intent to file charges and may try to settle the case. Prior to filing disciplinary charges, the State Bar will notify the respondent in writing of the right to request a confidential Early Neutral Evaluation Conference. If such a Conference is requested, a State Bar Court hearing judge will give the parties an oral evaluation of the facts and charges and the potential for imposing discipline. Such Conferences are to be held within 15 days of being requested.[xv]
If the case does settle, it will be submitted to the State Bar Court to review and approve the settlement terms. If the settlement includes suspension or disbarment, such settlement terms must be reviewed and approved by the California Supreme Court. Any public discipline is posted on the State Bar’s website, both on the web page of the State Bar Court and on the profile page (provided for every licensed California lawyer) for the disciplined respondent.
State Bar Court Proceedings
If the case does not settle, the State Bar will file charges against the attorney in State Bar Court, making the case public. The charging document, as well as the attorney’s response, will be posted on the State Bar’s website, and a notice of disciplinary charges will be posted on the respondent’s profile page on the State Bar’s website. State Bar Court proceedings generally are public, other than settlement conferences, judicial deliberations, and portions of the record determined by the court to be confidential.[xvi] In 2020, 425 cases were filed in State Bar Court.[xvii]
Neither settlement with a complaining witness in a civil suit (e.g., for attorney malpractice) nor dismissal of a criminal case against the respondent will prevent the State Bar from investigating and prosecuting disciplinary matters.[xviii] In addition, if a respondent resigns as an attorney with disciplinary charges pending, such fact will be made public, and “any perpetuated evidence” and “stipulation as to facts and conclusions of law” will be made available for public inspection.[xix]
Being tried in State Bar Court is not the same as being tried in a criminal proceeding, and certain procedural safeguards applicable in a criminal trial are not present in a State Bar Court trial. For example, a respondent does not have the right to a trial by a jury nor to appointed counsel if they cannot afford one.[xx] Also, the burden of proof in State Bar Court is clear and convincing evidence (not beyond a reasonable doubt),[xxi] and there is no statute of limitations in attorney disciplinary proceedings.[xxii] Further, State Bar disciplinary proceedings are governed exclusively by the Rules of Procedure of the State Bar, and the provisions of the California Code of Civil Procedure do not apply unless expressly incorporated into the Rules of Procedure by reference.[xxiii]
That said, however, in accordance with Business & Professions Code § 6085, an attorney respondent must be given “fair, adequate, and reasonable notice” of the charges and a “fair, adequate, and reasonable opportunity and right” to, among other things, defend against the charges, be represented by counsel, introduce evidence, examine and cross-examine witnesses, and issue subpoenas to compel attendance and testimony of witnesses and for production of books and papers.
If, after trial, the State Bar Court Judge determines that the respondent should not be disciplined, the case will be closed with no discipline imposed (subject to the right of the State Bar to request a review of the State Bar Court decision). In 2020, eight cases were closed by the State Bar Court with no disciplinary action taken.[xxiv]
On the other hand, if the State Bar Court Judge imposes discipline, formal discipline could take various forms, including disbarment, probation with actual suspension, probation with stayed suspension, public reproval and private reproval. In 2020, such discipline was imposed against 97, 83, 31, 26 and 24 attorneys, respectively.[xxv] Again, any public discipline is posted on the State Bar’s website. Either the respondent or the State Bar can request a review of the State Bar Court decision. The initial review is to the Review Department of the State Bar Court. As noted above, if discipline includes suspension or disbarment for the respondent attorney, such discipline must be reviewed and approved by the California Supreme Court and may include monetary sanctions of up to $50,000.[xxvi] Most of these cases sent to the Supreme Court are summarily affirmed. In relatively rare instances, the California Supreme Court may grant review and issue an opinion that includes a substantive review of the matter and affirmance or reversal of the decision below.
Again, hopefully this article is utterly irrelevant to you. However, if a complaint against you is filed with the State Bar, it is important to understand the process and your rights and obligations. It is also advisable to engage competent and experienced defense counsel who can help guide you through the process. And, most critically, it is important that you comply with your ethical obligations under the Rules of Professional Conduct. With that in mind, continue reading this monthly Ethics Spotlight for ethics guidance.
Neil J Wertlieb is a founding member and co-chair of the California Lawyers Association Ethics Committee. Mr. Wertlieb is an experienced transactional lawyer, educator and ethicist, who provides expert witness services in disputes involving business transactions and corporate governance, and in cases involving attorney malpractice and attorney ethics. Mr. Wertlieb also serves as a Special Deputy Trial Counsel on behalf of the State Bar, investigating and prosecuting on behalf of the State Bar certain complaints alleging misconduct by attorneys. For additional information, please visit www.WertliebLaw.com. The views expressed herein are his own.
[i] Rule 1.0 (Purpose and Function of the Rules of Professional Conduct) of the Rules of Professional Conduct. See also Ames v. State Bar (1973) 8 Cal.3d 910, 917.
[ii] See Business & Professions Code § 6103 (“A willful disobedience or violation of an order of the court requiring [an attorney] to do or forbear an act connected with or in the course of his [or her] profession, which he [or she] ought in good faith to do or forbear, and any violation of the oath taken by him [or her], or of his [or her] duties as such attorney, constitute causes for disbarment or suspension.”).
[iii] See Business & Professions Code § 6113 (“Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.”). See also In re Lesansky (2001) 25 C4th 11, 16 (“Criminal conduct not committed in the practice of law or against a client reveals moral turpitude if it shows a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties) or if it involves such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession.”).
[iv] In re Kreamer (1975) 14 Cal.3d 524, 532
[v] Business & Professions Code § 6090.5(a) (“It is cause for suspension, disbarment, or other discipline for any member, whether as a party or as an attorney for a party, to agree or seek agreement, that: (1) The professional misconduct or the terms of a settlement of a claim for professional misconduct shall not be reported to the disciplinary agency. (2) The plaintiff shall withdraw a disciplinary complaint or shall not cooperate with the investigation or prosecution conducted by the disciplinary agency. (3) The record of any civil action for professional misconduct shall be sealed from review by the disciplinary agency.”). See Cal. State Bar Form.Opn. 2012-185 (“If a lawyer seeks an oral or written agreement to not file a State Bar complaint, withdrawal of that request does not cure the ethical violation.”).
[vi] Of the nearly 17,500 news cases opened in 2020, 70% were initiated due to the filing of a complaint. See the State Bar’s Annual Discipline Report dated April 27, 2021.
[vii] See, e.g., ABA Model Rule 8.3; Arizona R. Prof. Conduct 8.3; Nevada R. Prof. Conduct 8.3; Oregon R. Prof. Conduct 8.3.
[viii] See San Diego Bar Ass’n Form.Opn. 1992-2. Note that Rule 3.10 of the Rules of Professional Conduct prohibits an attorney from threatening to present “disciplinary charges to obtain an advantage in a civil dispute.”
[ix] See Business & Professions Code § 6068(o); see also Business & Professions Code § 6086.8(a) (“Within 20 days after a judgment by a court of this state that a licensee of the State Bar of California is liable for any damages resulting in a judgment against the attorney in any civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity, the court which rendered the judgment shall report that fact in writing to the State Bar of California.”).
[xi] Rule 2201 of the Rules of Procedure of the State Bar requires the recusal of the Chief Trial Counsel in any case involving individuals with close ties to the State Bar. The rule sets forth grounds for mandatory and discretionary recusals. Such conflict cases are referred out to independent Special Deputy Trial Counsel, who have the powers and duties of the Chief Trial Counsel to investigate and prosecute such cases. In 2020, 302 complaints fell under Rule 2201. See the State Bar’s Annual Discipline Report dated April 27, 2021.
[xii] Business & Professions Code § 6068(i).
[xiii] Business & Professions Code § 6079.4.
[xiv] Business & Professions Code § 6086.1.
[xv] Rule 5.30 of the Rules of Procedure of the State Bar.
[xvi] Rules 5.9, 5.13 of the Rules of Procedure of the State Bar.
[xvii] See the State Bar’s Annual Discipline Report dated April 27, 2021.
[xviii] See, e.g., Matter of Aulakh (1997) 3 Cal. State Bar Ct. Rptr. 690, 694 (“the rules of procedure clearly provide that a disciplinary matter can proceed regardless of any civil settlement reached with the complaining client. Indeed, the State Bar can prosecute a matter even if the complaining client withdraws the State Bar complaint.”); Wong v. State Bar (1975) 15 Cal.3d 528, 531-532 (“A State Bar disciplinary proceeding may be maintained even though the accused attorney has been acquitted on criminal charges covering the same facts or has obtained a dismissal of such charges. … A criminal proceeding has for its purpose the punishment of the accused if he [or she] is found guilty. A disciplinary proceeding against an attorney is not intended for his [or her] punishment, but is for the protection of the public, the courts, and the legal profession.”).
[xix] Rule 5.11 of the Rules of Procedure of the State Bar; see also Rule 9.21 of the California Rules of Court.
[xx] See, e.g., Palomo v. State Bar (1984) 36 Cal.3d 785, 792 (“State Bar proceedings cannot be compared to criminal actions, and criminal procedural safeguards do not apply. Generally, an accused attorney has the obligation to obtain representation if he wants it”).
[xxi] Rule 5.103 of the Rules of Procedure of the State Bar.
[xxii] See Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631, 645 (“There is no statute of limitations in attorney disciplinary proceedings.”). Although disciplinary proceedings “based solely on a complainant’s allegations of a violation of the State Bar Act or Rules of Professional Conduct … must begin within five years from the date of the violation” (Rule 5.21(A) of the Rules of Procedure of the State Bar), this “five-year limit does not apply to disciplinary proceedings that were investigated and initiated by the State Bar based on information received from an independent source other than a complainant” (e.g., a court’s referral) (Rule 5.21(G) of the Rules of Procedure of the State Bar).
[xxiii] See Rule 5.104 of the Rules of Procedure of the State Bar; In the Matter of Bach (1991) 1 Cal. State Bar Ct. Rptr. 631, 645.
[xxiv] See the State Bar’s Annual Discipline Report dated April 27, 2021.
[xxv] See the State Bar’s Annual Discipline Report dated April 27, 2021.
[xxvi] Business & Professions Code § 6086.13.