I have over 28 years of experience with the discipline system of the State Bar of California, including 12 years working at the State Bar as a staff attorney, discipline prosecutor and discipline manager, and over 15 years representing respondent attorneys in the discipline system. I provide representation in all phases of the process, from initial inquiry through investigation, formal proceedings in State Bar Court, including hearing, appeal to the Review Department and appeal to the California Supreme Court.
How the Discipline System Works
The discipline office of the State Bar, the Office of Chief Trial Counsel, is a consumer protection agency and is statutorily mandated to investigate complaints. Your response plays a crucial role in the ultimate disposition of the complaint. The State Bar is not picking on you; it’s just doing its job. While you have a duty to cooperate, you, too, have rights in the process, and a big stake in the outcome.
Duty to Cooperate
You have a statutory duty to cooperate in the investigation (Bus. & Prof. Code §6068(i)). The statute also provides that the duty to cooperate shall not be construed to deprive an attorney of all statutory and constitutional privileges (Bus & Prof. Code section 6085). The Office of Chief Trial Counsel often asks for voluminous documentation as part of their investigation. Inadvertent disclosure of privileged materials can have civil and criminal, as well as disciplinary consequences. Many State Bar complaints can be resolved without the necessity of full service representation but consultation with experienced bar counsel can avoid expensive problems later. An attorney involved in the discipline process at any stage will benefit from counsel and, if necessary, representation. Here is a brief overview of the discipline process.
The discipline system is largely driven by complaints. Those complaints may come from anyone; there is no standing requirement for filing a State Bar complaint. Complaints are not the exclusive source for information that can lead to the opening of an inquiry or investigation. The State Bar can also open its own investigations from information received through so called “reportable actions” (Bus. & Prof. Code §§ 6068(o), 6086.7, 6086.8, 6091.1) or from information gleaned from the news media. When an attorney is charged with a crime or convicted of one, that information is also reported to the State Bar (Bus. & Prof. Code §§ 6101, 6102). Most State Bar proceedings, though, begin life as a complaint from a client.
The Office of Chief Trial Counsel of the State Bar of California (OCTC) is the agency responsible for investigating attorney misconduct and prosecuting attorney disciplinary proceedings. OCTC is divided into two main offices, the Office of Intake and the Office of Enforcement.
The Intake Stage
The Office of Intake, as the name indicates, takes in all information regarding attorney misconduct. Non-attorney complaint analysts work under the supervision of State Bar prosecutors, designated as Deputy Trial Counsel. The complaint analysts answer the State Bar toll free complaint hotline number (1-800-843-9053) receive information and send out complaint forms. Other complaint analysts in Intake monitor the reportable actions and criminal convictions.
When a matter is deemed serious enough to consider as a potential disciplinary matter, it is designated as an “Inquiry” and given an Inquiry case number. 16,024 cases of all types, Inquiries, reportable actions and other matters were opened in 2014 (State Bar 2014 Annual Discipline Report). The primary mission of the Office of Intake is to answer the question “If the facts as stated in this matter are true, is there a potential violation of the Rules of Professional Conduct or the State Bar Act?”
If the answer is no, the matter is typically closed at the Intake level, although some types of minor misconduct can be resolved at this level through a warning letter or an agreement in lieu of discipline (ALD). The Office of Intake will not typically contact the respondent attorney at the Inquiry stage but may if they are having trouble understanding the complaint or the misconduct is regarded as minor.
If the answer is “yes”, the matter is typically forwarded to the Office of Enforcement for investigation and prosecution if warranted. In 2014, 3,791 were forwarded to Enforcement.
The Investigation Stage
The Office of Enforcement is configured into several teams consisting of investigators and State Bar lawyers who supervise the Investigators and who try cases in the State Bar Court, designated Deputy Trial Counsel. The investigators gather information about the alleged misconduct. Typically, one of their first moves is to write to the respondent attorney seeking information and documents. Respondents have an obligation to co-operate in the State Bar’s investigation but also have the right to assert Constitutional and statutory privileges to disclosing information (Bus. & Prof. Code §§ 6068(i), 6085.) The State Bar has the right to subpoena documents and to conduct depositions at the investigation stage.
Formal Discipline Proceedings
If the investigators gather sufficient evidence to indicate that the State Bar could meet is burden of proof by “clear and convincing” evidence the respondent attorney will be sent a letter entitled “Notice of Intent to File Discipline Charges” called a “10 day” letter because it invites the respondent to file in State Bar Court for an Early Neutral Evaluation Conference (ENEC) within ten days. In 2014, the Enforcement Unit in OCTC completed 3,648 investigations and filed formal charges in 1,008 cases
State Bar Court
State Bar Court is a specialized court where discipline matters and other State Bar matters are adjudicated. This is a real court with real full-time judges who hear discipline, reinstatement and admissions cases. Proceedings in State Bar Court are governed by the State Bar Rules of Procedure, not the Code of Civil Procedure or the Penal Code.
Early Neutral Evaluation Conference (ENEC)
The ENEC is similar to a settlement conference. Each side is required to submit an ENEC Statement before the conference to guide the Court. The settlement judge will attempt to broker a settlement but is also charged with giving the parties an evaluation of the case. ENEC can be valuable for learning how the State Bar Court will view your position even if they do not result in a settlement.
Litigation in State Bar Court
If the ENEC is not successful, the Office of Chief Trial Counsel will initiate a discipline proceeding by filing a notice of discipline charges (NDC) in State Bar Court and serving on the respondent at his or her membership records address. The process is similar to civil procedure but different in key aspects. The formal rules of evidence do not apply; discovery is limited to a document and witness exchange unless approved by the hearing judge. Once the NDC is filed, it must be responded to within twenty (20) days. Failure to do so will result in a default and the charges being deemed admitted. Defaults are difficult to vacate, especially more than 45 days after they are entered.
By rule, trial in a discipline matter must occur within 125 days from the date the notice of discipline charges is filed. Trials are conducted by the five judges who sit in the State Bar Court hearing department, two in San Francisco and three in Los Angeles. A settlement conference is held in most matters litigated in State Bar Court and most cases are settled before trial. Once the case is submitted, a decision is due within 90 days.
Recommendation to California Supreme Court
Decisions are couched as “recommendations” to the California Supreme Court. The State Bar Court has a limited grant of authority from the Supreme Court to impose reprovals. Any greater degree of discipline, suspension or disbarment, must be ordered by the Supreme Court. Recommendations for discipline from the State Bar Court are usually adopted by the California Supreme Court within four to five months unless the State Bar or the respondent seeks review in the review department of the State Bar Court, though, in rare instances, the Supreme Court has granted review on its own motion.
The Review Department consists of one full-time judge, who is also presiding judge of the State Bar Court, and two part-time judges. The Review Department issues written opinions, some of which are citeable as binding precedent in State Bar Court. Seeking review in the Review Department is necessary for filing a petition for review of a disciplinary matter with the California Supreme Court. The Supreme Court seldom grants review.