No words regarding California's attorneys and their understanding of the attorney discipline system are truer than those uttered by Jonathan Arons, a long-time defense counsel representing clients in attorney discipline matters, at the State Bar Public Hearing on Admission, Competence and Discipline on December 4, 2007.1 Arons said, "[N]either the public nor the attorneys fully understand the disciplinary process, the system, how any of this works. The education aspect of the Bar is deficient." This unfamiliarity can result in self-defeating conduct during the litigation of a disciplinary matter. Not only should every California attorney have a basic understanding of the State Bar disciplinary system, but those actually facing disciplinary proceedings should know how to avoid the foreseeable pitfalls that may arise in the process.
The California Supreme Court has long held that the purpose of a disciplinary proceeding is not to punish the attorney but to protect the public, preserve public confidence in the legal profession, and ensure the highest professional standards for attorneys.2 The supreme court's power to discipline licensed attorneys in California is inherent and expressly reserved.3 Business and Professions Code Section 6087 authorizes the supreme court to delegate this function to the State Bar--as long as any actions by the State Bar are reviewable by the court4--and the supreme court has done so for much of the discipline process.5
The State Bar of California, a nonprofit public corporation, acts as the administrative arm of the California Supreme Court in matters involving the admission, regulation, and discipline of attorneys.6 The Office of the Chief Trial Counsel (OCTC) is the enforcement entity of the State Bar, responsible for prosecuting cases of attorney misconduct before the State Bar Court.
Attorneys come to the attention of the Enforcement Division of the State Bar in various ways. The majority of cases involve a complaint from a former client. Complaints also can come from opposing counsel or parties and judges. Banks are required to report attorneys if they bounce a check on their client trust account.7 Other enforcement actions emerge from an attorney being held in contempt or having a modification or reversal of a judgment based on misconduct, incompetent representation, or willful misrepresentation.8 A attorney's criminal conviction sets in motion a process leading to a determination whether the crime involves moral turpitude or other misconduct warranting discipline, and a hearing to decide what, if any, discipline, is warranted.9
The OCTC's Intake Unit receives a complaint regarding an attorney and proceeds to conduct an initial analysis of its viability. This is followed by a preliminary investigation and attempts to resolve the matter. If the complaint survives the intake review, it proceeds to a State Bar investigator for further handling. Statistically, the chances are remote that a complaint or other inquiry will result in either the filing of a formal charge, in the form of a Notice of Disciplinary Charges (NDC), or a prenotice disciplinary disposition. Indeed, only 20 to 25 percent of all complaints remain viable beyond the Intake Unit. In 2008, for example, of the 13,647 inquiries that were made, 10,845 were closed at the intake level, leaving only 2,802 inquiries for further investigation.10
If Intake sends the complaint to an investigator, the attorney being complained about--referred to as the respondent--will be contacted at the address maintained in the State Bar's membership files for that attorney. The initial contact is via correspondence, colloquially known as a TR ("to respondent") letter. The TR letter will state that the State Bar has received a complaint and will identify the complainant, give a brief synopsis of the complaint, request a written response, and seek documentation from the attorney.
The TR letter's use of the word "request" for a response is misleading. While respondents are not required to waive any statutory or constitutional privileges, they are required to cooperate with the State Bar investigation11 as a legal and ethical duty.12 Courts have held that an attorney's failure to participate in the State Bar's investigation of misconduct is a breach of that duty.13 A respondent's failure to cooperate with the State Bar's investigation of his or her misconduct is a substantive violation of Business and Professions Code Section 6068(i), which requires cooperation, and is not merely an aggravating factor.14
Failure to cooperate can transform a minor complaint that could have been handled without a disciplinary disposition into a full-blown disciplinary matter. Approximately 65 to 80 percent of all matters referred for investigation end with a resolution other than discipline or the filing of a NDC.15 Thus a fear of confronting the State Bar can ultimately lead precisely to the dreaded confrontation as a direct result of the respondent's failure to participate.
It is not unusual to find State Bar prosecutors who are former assistant district attorneys. Others have criminal and civil litigation backgrounds from diverse practice areas. Many serve as prosecutors for more than 10 years, and they quickly gain experience in attorney discipline cases by focusing exclusively on them. They not only have the home field advantage but also develop expertise dealing with a wide spectrum of practitioners. Respondents practice in a variety of substantive areas and are diverse geographically, ethnically, educationally, generationally, and temperamentally.
Prosecutors know the rules, and respondents find it hard to play the game when they are not as knowledgeable. For respondents, being a solid criminal or civil court practitioner is not enough if they are unfamiliar with the State Bar Act, ignorant of the Rules of Procedure of the State Bar of California, or unaware of the Rules of Practice of the State Bar Court.
The State Bar operates under a specialized set of procedural rules. Its attorney disciplinary proceedings have been described as adversarial and quasi-criminal,16 evoking a sense of being simultaneously criminal and civil. The irony is that the proceedings are neither civil nor criminal.17 They are administrative18 and are not governed by either civil or criminal procedural rules.19 Moreover, criminal procedural safeguards do not apply in disciplinary proceedings.20 The criminal exclusionary rule does not apply in attorney discipline cases,21 and neither does the prohibition against double jeopardy.22 The respondent does not have the right to refuse to testify.23 When the respondent is called to testify by the State Bar, he or she can be examined as if under cross-examination.24
An attorney's only entitlement to due process involves a "fair hearing."25 Attorneys facing the disciplinary process do not have a constitutional right to counsel.26 Although they have a statutory right to be represented by counsel, they bear the responsibility to obtain representation,27 and they do not have a right to the effective assistance of counsel.28
Civil procedure elements are incorporated into the disciplinary process by the Rules of Procedure of the State Bar of California, such as California's Civil Discovery Act via Rule 180 of the State Bar rules. Similarly, Rule 214 of the State Bar rules makes California's Evidence Code applicable in State Bar proceedings, with some exceptions. Nevertheless, hearing judges have wide latitude to receive all relevant evidence, and relief from their decisions will not be granted without a showing of actual prejudice.29 Indeed, a State Bar Court may invoke other civil or criminal procedures to ensure due process.30
While the State Bar Court operates under specialized rules, it can also rely on the substantial body of case law generated by the Review Department of the State Bar Court. These decisions appear in the California State Bar Court Reporter. Along with decisions of the California Supreme Court, the State Bar Court Review Department decisions are the primary case law used by the State Bar Court to support disciplinary holdings.
Reasonable Approach to Settlement
Respondents not only need to respond to a complaint. They also must decide as soon as possible whether to settle a disciplinary matter--a determination that usually involves a cost-benefit analysis. Generally, the best offer comes early in the process. If the respondent is able to resolve the problem before the proceedings become full blown, he or she may not receive public discipline, or any discipline at all. Delay in deciding whether to settle frequently means that public discipline becomes more of a possibility. This is so particularly when discipline would not have been warranted but for the respondent's lack of cooperation with the investigation.
Prosecutors formulate disciplinary offers based upon several factors, including the State Bar's Standards for Attorney Sanctions for Professional Misconduct as well as the alleged misconduct, and any mitigating or aggravating factors. The State Bar's standards set forth the baseline for disciplinary dispositions and "shall apply to the fixing of a final disciplinary sanction…."31 They provide for a broad range of sanctions depending upon the nature and gravity of the offense and the resulting harm to clients.32 However, the standards "do not mandate a specific discipline."33 They define the factors that the court may consider as either aggravation or mitigation.34
Ever since the California Supreme Court in In re Silverton35 affirmed that the State Bar's standards must be afforded great weight in disciplinary recommendations, the OCTC's willingness to deviate from the standards became minimal. Further, a prosecutor's formulation of a settlement position is refined by other supreme court decisions as well as Review Department opinions.
When a respondent finds the prosecutor's best offer unacceptable, he or she should proceed carefully. A respondent who steadfastly believes that no discipline is warranted should not stipulate to discipline for fear of going to trial. However, the respondent's belief should be based upon a reasonable expectation of doing better at trial. Just because a respondent does not like a prosecutor's settlement position does not mean it is unreasonable. If the respondent has to conjure up a novel legal theory to present a defense or do other legal gymnastics to explain away the obvious, the chances of a successful defense are pretty slim. Respondents may request an Early Neutral Evaluation conference with a State Bar judge, and this may be helpful in determining the merits of the matter.36
The respondent pays the costs of any proceeding that results in public discipline,37 and those costs increase as the resolution of the process takes longer to conclude. According to a formula approved by the Board of Governors pursuant to the Business and Professions Code, the cost of a disciplinary proceeding presently ranges from $1,983 to $11,107, not including other allowable associated costs of litigating the case or the costs of seeking review. If a respondent chooses to go to trial and is exonerated of all charges, the respondent can move for reimbursement of costs authorized under the Business and Professions Code, as interpreted through the State Bar's rules of procedure.38
Going to Trial
Respondents should not rely on the State Bar's pretrial statement and exhibits as their reminder to file their own pretrial statement. Rule 211 of the Rules of Procedure of the State Bar of California requires the parties to attempt to file a joint pretrial statement. If they are unable to do so after a good faith effort, the parties must file separate statements. Rule 1221 of the Rules of Practice of the State Bar Court specifies that the parties must meet in person or telephonically to comply with Rule 211. Nevertheless, despite these rules, it is not infrequent that a respondent fails to timely file a pretrial statement.
Without a joint statement, the State Bar prosecutor will send the respondent a pretrial statement, a set of marked and paginated documents representing the State Bar's exhibits, and a witness list of those scheduled to testify at the trial. This is accomplished 20 days prior to the pretrial conference or at another time specified by the court.39 When this happens, the respondent risks discovering that it may be too late to prepare an adequate defense. Trying to conjure up a defense at the last minute is like having an architect draw up plans for a fortified castle after the siege has begun and the opposing army is ready with sharpened swords.
The failure to file any type of pretrial statement can lead to the respondent becoming a silent spectator at his or her own disciplinary hearing. As Rule 211(f) states, "Failure to file a pretrial statement in compliance with this rule may constitute grounds for such orders as the Court deems proper, including but not limited to the exclusion of evidence or witnesses." In Matter of Heiner, the Review Department recognized that pretrial statements are an effective tool for the efficient conduct of State Bar trials.40 The court warned that "[u]nexcused failure to comply with an order requiring a pretrial statement…should not be treated lightly."41 Furthermore, the failure to comply with pretrial procedures may be considered a serious aggravating circumstance.42 Failing to file a pretrial statement can have a negative effect on the disciplinary recommendation if the respondent is found culpable of misconduct.
The burden of proof for State Bar prosecutors is clear and convincing evidence.43 The respondent bears the same burden of proof for mitigating circumstances.44 Further, at the evidentiary hearing, the respondent has a duty to present all evidence that he or she deems favorable.45
No rule or standard holds that respondents must prove affirmative defenses by clear and convincing evidence. Evidence Code Section 500 provides that a party has the burden of proof for the facts underlying a claim or defense. Rule 214 of the State Bar rules of procedure incorporates Evidence Code Section 500. Although not implicating the burden of proof, the Review Department, in the Matter of Wolff, indicated that the rule of limitations in State Bar proceedings must be pled as an affirmative defense--and the respondent bears the burden when making this pleading.46 In the Matter of Respondent B, the Review Department held that "the standard of clear and convincing evidence is so basic to State Bar proceedings that any deviation from this standard is ordinarily spelled out in the State Bar Act or the Transitional Rules of Procedure."47
Ineffective Trial Defenses
Some attorneys believe that the best defense is to go on offense. Their instinct is to lash out in the hope that adversaries will back down. However, State Bar prosecutors are not intimidated by aggressive attorneys. Insults, threats, and other forms of intimidation tactics may be taken as indications that the respondent has no legitimate defense to the charged conduct.
For example, in Matter of Steven G. Hanson, the respondent repeatedly threatened the prosecutor and the trial judge.48 In his pleadings he wrote, "So far in this case, both the court and the prosecutors, are ignoring law and procedure thereby subjecting themselves ultimately to personal liability in a Federal Court action both through RICO and civil rights claims." Respondents are not going to intimidate anyone in the State Bar disciplinary process into dropping charges or believing the absurd. Ultimately, the respondent defaulted at trial and was disciplined. Interestingly, the State Bar Court did not find Hanson's behavior to be aggravating under Standard 1.2(b)(vi).
Nevertheless, the Review Department did find that overly hostile litigation tactics were an aggravating factor in a recent unpublished decision. The Matter of Richard Isaac Fine is notable for the proposition that aggression is a poor litigation tactic in State Bar proceedings.49 The respondent had engaged in a pattern of misconduct in which he repeatedly misused Code of Civil Procedure Section 170.3--a provision for challenging judicial officers due to bias or prejudice--against a superior court commissioner who had ruled against him. The respondent continued to attempt to coerce and intimidate the judicial officer during the disciplinary proceeding before the State Bar Hearing Department, while the matter was under review by the Review Department, and even after his disbarment.
Some respondents bring to disciplinary proceedings a firm belief that they are being wronged. Respondents should keep in mind that in all likelihood, they are the only ones involved in the matter who see themselves as the victim. If a respondent's trial strategy is to mount a martyr defense, the respondent should be prepared for the prosecutor to present a former client whose case the respondent bungled, whose telephone calls the respondent ignored, and whose money the respondent has not returned.
One variation of the "respondent as victim" defense is the "evil secretary" defense. Respondents use this defense primarily when trust funds turn up missing. This defense is an attempt to shift responsibility to a subordinate. Nevertheless, even if an attorney is the victim of duplicitous staff, the respondent may still be culpable. Attorneys can delegate authority but not responsibility--and courts have repeatedly found respondents culpable of moral turpitude by gross negligence.
For example, in Matter of Rubens, the Review Department held that an attorney violated Business and Professions Code Section 6106 by abdicating responsibility for a case to support staff.50 Respondents have a "personal obligation of reasonable care to comply with the critically important rules for the safekeeping and disposition of client funds."51 Moreover, "'Trust account deficiencies are attributable to attorneys--not their employees.'…"52 Responsibility for trust fund management and oversight cannot be delegated.53 The Review Department also has held a respondent culpable of moral turpitude based upon gross negligence because the respondent's slipshod procedures allowed entrusted funds to be misappropriated without his knowledge.54
Another variant of the "respondent as victim" defense is the "crazy client" defense. This is used when respondents fail to communicate with or have abandoned a client. Respondents using this defense claim that "[m]y client incessantly called, was unreasonable, harassed me, ranted, had mental issues." Just by using the crazy client defense, respondents are tacitly admitting that they were avoiding their client. The respondents are providing evidence of their failure
to communicate with a client. Thus the defense often backfires--and if the client at court appears reasonable, articulate, and aggrieved, the judge may turn the crazy client defense into a "respondent lacks credibility" determination.
Respondents should not stipulate to evidence just because they are afraid of going to trial or because they want to cut the trial short. Rule 130 of the State Bar rules of procedure requires that the parties attempt to stipulate to some or all issues prior to trial. However, since the State Bar has the burden of proving its case by clear and convincing evidence, reasonable doubts regarding a charge of professional misconduct must be resolved in favor of the accused attorney.55 The job of respondents is to hold prosecutors responsible for meeting their burden. Likewise, stipulating to adverse evidence as a strategem for introducing positive evidence is almost never worth the bargain. Respondents are mistaken if they think that the only benefit of the bargain for the prosecutor is to make the trial more efficient or shorter or to not require the presence of a witness to establish the foundation of an exhibit. Furthermore, respondents often assume, incorrectly, that courts will invariably admit all prosecutorial evidence.
The vagaries of trial make stipulating to exhibits a gamble for respondents. A prosecutor's willingness to stipulate may indicate that the prosecutor would rather be spared the trouble of having to lay a foundation for exhibits or calling foundational witnesses. On the other hand, the eagerness of prosecutors to stipulate may also indicate that the case is falling apart and the prosecutors are scrambling at the last minute to prove an element of the charged misconduct.
For prosecutors, stipulating to evidence is a win-win situation. With a stipulation, they shorten the trial and may ensure the admission of evidence that may not have come in but for the stipulation. Prosecutors face no downside when they stipulate to the admission of evidence because almost all documents in a State Bar trial involve the underlying representation for which the respondent has been accused of professional misconduct--and the respondent has a special relationship with each document. The respondent either wrote the document, received it, or otherwise will be able to get it admitted through the respondent's own testimony. The respondent will almost certainly see the admission of all of his or her evidence unless it does not directly relate to the case. If a respondent is unable to get the evidence admitted, it is likely that the evidence is tangential and therefore of limited value to the defense.
For example, respondents often want prosecutors to stipulate to allowing affidavits of character witnesses in lieu of having the witnesses testify. Standard 1.2(e)(iv)56 allows consideration of "an extraordinary demonstration of good character of the member attested to by a wide range of references in the legal and general communities who are aware of the full extent of the member's misconduct." If the prosecutor makes no objection, the respondent may admit declarations from character witnesses without the necessity of those witnesses making an appearance in court.57
Still, in practice, there is only so much that a prosecutor can elicit in cross-examining a character witness. The prosecutor will cross-examine the witness about the length of the relationship with the respondent, the context in which the witness formed the opinion provided by the witness, what the respondent or respondent's counsel told the witness prior to testifying, what documents the witness reviewed, and what the witness knows about the charged misconduct. Indeed, what the witness knows about the charged misconduct is the most common source of prosecutorial cross-examination. The Review Department has held that the mitigating value of character evidence is undermined if the witness is not aware of the full extent of a respondent's misconduct.58 If the witness is aware of the extent of the alleged misconduct, the prosecutor typically asks, "If the allegations were true, would that change your opinion about the respondent's reputation for truthfulness?" Prosecutors are not going to gain much from that question or even the cross-examination in its entirety.
Indeed, the prosecutor's case will suffer very little harm if the prosecutor agrees to stipulate to allowing a declaration from the respondent's spouse telling the court what a wonderful person the respondent is. Nevertheless, respondents will sometimes stipulate to one or all of the prosecution's exhibits in exchange for the admission of the most innocuous piece of evidence.
Determining how respondents will fare in the State Bar's disciplinary process can be gleaned by looking at the 2008 Report on the State Bar of California Discipline System for 2004 through 2008. During those years, the chances of a case receiving a dismissal or a nondisciplinary disposition ranged between 8.9 percent to 12 percent. Using those statistics as a guide, a respondent who goes to trial has about a 90 percent chance of being found culpable of some misconduct and receiving a disciplinary disposition.
Therefore, all attorneys should be familiar with the State Bar's disciplinary process, including the rules by which the system is governed and the pitfalls that may arise for the defense. For a respondent to be successful, he or she must perform an honest inventory of the conduct at issue in the case, know the adversary, and create the circumstances necessary for engaging prosecutors on favorable terms. Respondents are responsible for presenting their best defense. Indeed, their careers depend on doing so.