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State Bar Discipline Defense
A: Depending on your field of practice, it is not unusal to receive State Bar complaints. The vast majority of discipline complaints are disposed of with no action by the State Bar...
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.
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. Inadverent 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 mostly 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 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. 89,823 calls were received in 2004. 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. 12,383 Inquiries were opened in 2004. The Office of Intake will sometimes contact the respondent attorney at the Inquiry stage. 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).
If the answer is "yes", the matter is typically forwarded to the Office of Enforcement for investigation and prosecution, if warranted. In 2004, 4,278 were forwarded to Enforcement.
The Office of Enforcement is configured into several teams consisting of investigators, Deputy Trial Counsel who supervise the Investigators and Deputy Trial Counsel who try cases in the State Bar Court. 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.)
If the investigators gather sufficient evidence to indicate that the State Bar could meet is burden of proof by "clear and convincing" evidence (State Bar Rule of Procedure 213) the respondent attorney will be sent a letter entitled "Notice of Intent to File Discipline Charges", called a "20 day" letter because it invites the respondent to meet with a Deputy Trial Counsel within 20 days to discuss the matter, including discussion of resolution. The "20 day" letter also notifies the respondent that he or she can request an early neutral evaluation conference (ENEC) with a State Bar Court judge if the "20 day" meeting does not lead to a resolution.
State Bar Court is the court where discipline matters are adjudicated. This a real court with real judges who hear discipline, reinstatement and admissions cases. The formal rules of evidence apply (State Bar Rule of Procedure 214) Proceedings in State Bar Court are governed by the State Bar Rules of Procedure, not the Code of Civil Procedure or the Penal Code.
State Bar Rule of Procedure 75 governs the ENEC. The format is similar to settlement conference. Each side is required to submit an ENEC Statement before the conference to guide the Court. If the ENEC is not successful, the State Bar 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. For instance, most of the civil discovery rules apply but the discovery period is limited to 120 days from the service of the NDC (State Bar Rules of Procedure 180, 181). 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.
Trial in a discipline matter usually occurs 6 to 9 months from the date charges are 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. At least 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.
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 (Cal. Rule of Court 956(a)). 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. Such review is extremely rare.
David Cameron Carr provides experienced counsel and representation at reasonable rates.