By Charles Berwanger
The purpose of this article is to provide a skeletal outline of the State Bar’s disciplinary process and recommendations for dealing with it.
Foundational to the Rules of Professional Conduct is the “fundamental rule of ethics – that common honesty – without which the profession is worse than valueless in the place it holds in the administration of justice.” (Alkow v. State Bar (1952) 38 Cal. 257, 264.) A lawyer’s duty of honesty applies whether not a lawyer is or is not practicing law or acting in a professional capacity.
The State Bar is entrusted with the duty of not only regulating but also disciplining lawyers. The California Supreme Court delegated to the State Bar the power to act on its behalf in disciplinary matters, subject to the Court’s review. In turn, the State Bar’s Office of Chief Trial Counsel (OCTC) has been delegated the charge of carrying out the State Bar’s statutory obligation as the “disciplinary agency.”
The State Bar’s Board of Trustees has adopted Standards for Attorney Sanctions for Professional Misconduct to fulfill the primary purposes of discipline: (a) protection of the public, the courts and the legal profession; (b) maintenance of the highest professional standards; and (c) preservation of public confidence in the legal profession.
How then does the discipline system work?
Complaints to the State Bar regarding the conduct of lawyers come from all manner of sources. They include clients, other lawyers (including not only opposing lawyers but any lawyer who may have witnessed what they reasonably believe to be unethical conduct) and judges (who as well have may witnessed unethical – or uncivil – conduct.) The State Bar may also initiate the discipline process based upon information disclosed to it by newspapers, and other such information sources.
In 2023, the State Bar opened over 17,000 cases against California attorneys and non-attorneys, who hold themselves out fraudulently as licensees. Of those, the State Bar recommended disbarment of 476 attorneys and suspension of another 122. (Recommendations require assent of the California Supreme Court for final approval.)
What happens when a complaint is received by the OCTC?
OCTC staff will perform an initial review of the complaint to determine whether to close it or forward it for investigation. If the complaint sufficiently alleges misconduct, OCTC assigns it for investigation. If it does not, OCTC closes the matter. The lawyer subject of the complaint at this stage will usually not learn of the complaint during the initial review. At the investigation stage, an OCTC investigator working with OCTC attorneys, may interview witnesses and the lawyer, subpoena and analyze bank records if appropriate, obtain court documents, and otherwise evaluate and analyze the case to determine whether there is clear and convincing evidence of misconduct that would allow OCTC to bring disciplinary proceedings in State Bar Court.
If it is determined that there is sufficient evidence to support disciplinary proceeding, the complaint advances to the charging stage. If OCTC determines there is sufficient evidence that shows clearly and convincingly that there has been an ethical violation warranting the filing of a Notice of Disciplinary Charges, OCTC will notify the lawyer in writing of the intent to file such charges, and the lawyer may request a confidential pre-filing Settlement Conference. Such a conference will be held before a State Bar Judge. The lawyer has the right to request informal discovery and to discuss potential disposition of the matter to avoid further action.
The final step in the process, should there be a Notice of Disciplinary Charges served and filed, are pretrial proceedings in accordance with the State Bar Rules of Practice, and ultimately trial in accordance with such Rules. State Bar trial proceedings are held before specially appointed State Bar hearing judges in accordance with the unique rules specific to such proceedings.
The consequence of having to deal with a State Bar investigation, or consequent charge, can be emotionally and financially devastating. Proceedings before the State Bar court should be treated the same as a proceeding before a civil court. One’s attire, one’s written product, one’s presentation, and treatment of a State Bar Judge should be as respectful and considerate as before a civil court. This writer viewed State Bar proceedings in which the lawyers presented themselves in what can only be described as disrespectful in their attire and mannerisms.
Finally, it cannot be overstated that a lawyer who receives notice of an investigation or worse is well advised to retain counsel familiar with the State Bar procedures and the way things work in State Bar proceedings. Fundamentally, however, as many writers for the Ethics in Brief series have stressed lawyers simply must be familiar with the Rules of Professional Conduct and act in accordance with them to avoid having to deal with a disciplinary proceeding. Such rules as well most assuredly preserve and enhance a lawyer’s relationships with clients, other lawyers, and judges.