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Proposed Amendment to Rule 2201 of the Rules of Procedure of the State Bar of California Relating to Appointment and Authority of Special Deputy Trial Counsel
State Bar Rules of Procedure rule 2201 sets forth a procedure for assigning disciplinary complaints or inquiries to outside counsel (Special Deputy Trial Counsel) when the Chief Trial Counsel recuses himself from the matter. To ensure independence, a Special Deputy Trial Counsel appointed under rule 2201 maintains all the powers and duties of the Chief Trial Counsel in connection with any resulting investigation or charging decision. The current form of the rule describes two types of complaints which entail different procedures for appointing Special Deputy Trial Counsel. Rule 2201(a) describes the process when the Chief Trial Counsel “may” appoint a Special Deputy Trial Counsel and rule 2201(i) describes a different process for those situations when the Chief Trial Counsel is required to recuse himself. Under rule 2201(a), the Chief Trial Counsel or designee is allowed to conduct a preliminary review of an inquiry or complaint that falls under this section and decide whether to close the matter, investigate the matter or refer it to a Special Deputy Trial Counsel for handling. In rule 2201(i) cases, the Chief Trial Counsel does not review the inquiry or complaint but refers the matter to the Chair of the Board’s Regulation and Discipline Committee or her designee for appointment of a Special Deputy Trial Counsel. The proposed amendments restructure rule 2201 in several fundamental ways and are intended to improve the efficient consideration of rule 2201 inquiries and complaints and enhance impartiality in the review of these matters.
The proposed amendments, if adopted, will largely eliminate permissive recusals and require the Chief Trial Counsel to remove himself from consideration of inquiries or complaints that presently he “may” review and consider. The purpose of expanding the mandatory recusal criteria is to enhance public confidence in how the State Bar addresses possible conflict cases.
The proposed amendments also introduce a process for referring all rule 2201 cases to a Special Deputy Trial Counsel Administrator (“Administrator”) who will be responsible for conducting the initial review of all referred rule 2201 cases and will determine whether to close these matters or assign them to a Special Deputy Trial Counsel, if appropriate. The Administrator will also monitor the progress and status of all matters in the hands of a Special Deputy Trial Counsel. This procedure is intended to expedite the assignment, investigation and disposition of rule 2201 cases. The proposed amendments provide that the General Counsel monitor referrals in a manner that maintains the necessary impartiality and confidentiality of these types of cases. The Administrator and Special Deputy Trial Counsel may be removed for good cause by the Chairperson of the Regulation and Discipline Committee or her designee under the proposed amendment.
The proposed amendments also address the difficulties inherent in a volunteer model of appointed Special Deputy Trial Counsel by authorizing that both the Administrator and Special Deputy Trial Counsel be reasonably compensated. Current rule 2201(a) provides that a Special Deputy Trial Counsel “shall not” receive compensation for services unless the Chief Trial Counsel has contracted in advance with the Special Deputy Trial Counsel to receive compensation. It is hoped that allowing a Special Deputy Trial Counsel (and the Administrator) to be reasonably compensated will increase the availability of attorneys willing to accept rule 2201 cases and improve their performance and efficiency.
In non-rule 2201 disciplinary matters, complainants are informed that they may request review of decisions to close their complaints or inquiries by the State Bar’s Audit and Review Unit (commonly referred to as “second look review”). Closed rule 2201 complaints and inquiries, however, have not been subject to second look review. Proposed revised rule 2201 provides for second look review of closed complaints and inquiries.
The proposed amendments also include a reporting requirement by the Administrator and/or the Office of General Counsel of rule 2201 cases to the Chairperson of the Regulation and Discipline Committee.
The proposed amendment makes other structural and language changes to rule 2201. Importantly, the duties and responsibilities of a Special Deputy Trial Counsel remain the same as currently provided in rule 2201.
The proposed amendment contemplates that the Special Deputy Trial Counsel Administrator and assigned Special Deputy Trial Counsel will be reasonably compensated for their services and receive reimbursement of reasonable expenses for investigative, administrative and legal support. These expenditures will be incurred by the State Bar.
Attachment A: Current version of rule 2201
Attachment B: Redline version of revised rule 2201
Attachment C: Clean version of revised rule 2201
Regulation and Discipline Committee
July 1, 2016
Office of General Counsel
180 Howard St.
San Francisco, CA 94105