A Few Things to Remember about Notification and Reporting Requirements
LACBA Update, March 2006
By Rebecca Meyer Rosenberg, member, LACBA Professional Responsibility and Ethics Committee. The opinions expressed are her own.
The wise practitioner periodically reviews the State Bar Act (Bus. & Prof. Code Sec. 6000 et seq.) as there are many notification/reporting requirements that can become pitfalls for the unwary practitioner. Below are a few of the notification/reporting requirements of which every practitioner should be aware.
Membership records address. An attorney’s failure to keep the State Bar of California apprised of the attorney’s current office address and telephone number—or, if the attorney does not have an office, an address where the State Bar can contact the attorney—may result in the attorney not being entitled to practice law and may ultimately lead to the imposition of discipline without the attorney’s knowledge. Business and Professions Code Sec. 6002.1(a)(1) requires that an attorney who is licensed to practice law in California must maintain on the State Bar’s official membership records the attorney’s office address and telephone number or, if the attorney does not have an office, “the address to be used for State Bar purposes or purposes of the agency charged with attorney discipline.” Furthermore, attorneys are required to notify the State Bar’s membership records office within 30 days of any change in such information.
Why is it important to timely notify the State Bar of any change in the attorney’s membership records address? It is the duty of an attorney to comply with the requirements of Business and Professions Code Sec. 6002.1. (Bus. & Prof. Code Sec. 6068(j).) Furthermore, notices initiating disciplinary proceedings do not require personal service. Rather, the requirement is that the notice be served by certified mail, return receipt requested (or recorded delivery if the attorney’s address is outside the United States), to the attorney’s official membership records address. (Rules Proc. of State Bar, Rule 60.) “Such notices are deemed served at the time of mailing regardless of whether they are actually received by the attorney.” (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1186.) Thus, an attorney’s failure to timely update the membership records address with the State Bar could result in the attorney’s failure to timely respond to disciplinary charges, leading to the entry of the attorney’s default (Rules Proc. of State Bar, Rule 200), and the attorney could be involuntarily enrolled inactive pursuant to Business and Professions Code Sec. 6007(e).
Furthermore, on entry of default, the factual allegations set forth in the notice initiating the disciplinary proceeding will be deemed admitted, and “no further proof shall be required to establish the truth of such facts.” (Rules Proc. of State Bar, Rule 200(d)(1)(A).) This could result in the imposition of discipline even if the attorney has a valid defense. The attorney also could be subject to further disciplinary or criminal charges if the attorney continues to practice law after the effective date of the attorney’s suspension or disbarment. (Bus. & Prof. Code Secs. 6125-6126.)
Attorney duties. Business and Professions Code Sec. 6068(o) provides that an attorney must report in writing to the State Bar within 30 days of knowledge of the imposition of the following against the attorney:
• In any 12-month period, the filing of three or more lawsuits for malpractice or other wrongful conduct committed in a professional capacity. (Bus. & Prof. Code Sec. 6068(o)(1).)
• The entry of judgment in a civil action against the attorney for breach of fiduciary duty, misrepresentation, fraud, or gross negligence committed in a professional capacity. (Bus. & Prof. Code Sec. 6068(o)(2).)
• Sanctions of $1,000 or more unless the sanctions are imposed for failure to make discovery. (Bus. & Prof. Code Sec. 6068(o)(3).) Sanctions must be reported to the State Bar within the 30-day period even if an appeal of the sanctions order is pending. (In the Matter of Wyshak (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 70, 81.)
• The bringing of an indictment or information charging the attorney with a felony. (Bus. & Prof. Code Sec. 6068(o)(4).)
• A felony conviction or the conviction of certain misdemeanors. (Bus. & Prof. Code Sec. 6068(o)(5).)
• Discipline by an occupational or professional disciplinary licensing board or agency either in California or elsewhere. (Bus. & Prof. Code Sec. 6068(o)(6).)
• Reversal of a judgment based in whole or in part on an attorney’s misconduct, wilful misrepresentation, or grossly incompetent representation. (Bus. & Prof. Code Sec. 6068(o)(7).)
• Any of the above that are imposed against the attorney’s law firm or corporation if the attorney was a partner or shareholder at the time of the conduct complained of unless, to the attorney’s knowledge, the matter already has been reported by the law firm or corporation. (Bus. & Prof. Code Sec. 6068(o)(8).)
No professional liability insurance. Within 30 days an attorney who does not have malpractice insurance must send in writing to the State Bar a complete report as to any judgment, settlement, or arbitration award based on a claim or action for breach of fiduciary duty, misrepresentation, fraud, or negligence committed in a professional capacity. (Bus. & Prof. Code Sec. 6086.8(c).)
Reviewing the notification/reporting requirements found in the State Bar Act is important. It just might save your license and your career.