The State Bar seeks public comment regarding a proposed Rule of Procedure of the State Bar regarding electronic notification of letters of inquiry in attorney discipline cases.
Deadline: 5 p.m. April 30, 2018
Before filing disciplinary charges, the Office of Chief Trial Counsel (OCTC) is required to notify the attorney in writing about the nature of the charges, and provide the attorney an opportunity to provide an explanation or defense to the allegations. (Rule 2409(a), Rules Proc. of the State Bar.) This notification is referred to as a letter of inquiry.Rule 2409 does not specify any particular method of service of this letter. Business and Professions Code section 6085 provides any person complained against to have a right to "fair, adequate and reasonable notice," but does not define the format of such notice.
Attorneys are required to cooperate in a State Bar investigation and may be subject to discipline if he or she does not do so.(Bus. & Prof. Code, § 6068(i).)
Currently, the State Bar sends letters of inquiry by U.S. mail to the licensee’s membership record address and any other address of which we are aware. If the licensee does not respond, we send a second letter. This results in a delay in completing our investigations. Despite these multiple letters, licensees frequently claim, rightly or wrongly, that they have not received the letter of inquiry. Members of the attorney’s defense bar have similarly complained that OCTC use of the U.S. mail causes undue delay, which impacts their ability to provide a response by the deadline set in the letter of inquiry.
OCTC proposes to mitigate these problems through the use of electronic communication as has been done in other areas of the law. In the federal courts, for example, pleadings are routinely filed and served electronically.
On Feb. 1, 2010, the Supreme Court adopted California Rule of Court rule 9.9 (formerly rule 9.7) to facilitate online communications between the State Bar and licensees. As contemplated by the rule, the State Bar provides its licensees with a secure online account, called "My State Bar Profile," by which information the State Bar can confidentially transmit information to licensees. Rule 9.9(a) requires licensees to provide the State Bar with a confidential e-mail address "to facilitate communications by the State Bar with its members …"
On March 8, 2018, the Regulation and Discipline Committee of the Board of Trustees authorized a 45-day public comment period for a proposed amendment to Rules of Procedure of the State Bar.
This proposal, if adopted, would specifically authorize OCTC to use a licensee’s "My State Bar Profile" page to transmit letters of inquiry to licensees who are the subject of misconduct allegations. OCTC would provide the licensee with substantially contemporaneous notification of the posting of the written notice of the nature of the charges by sending an email to the licensee’s confidential email address. Once a licensee has opened the letter of inquiry, the State Bar’s computer system would provide a notification to OCTC.
As under the current rules, evidence that a licensee has failed to respond to the email or letter of inquiry could be used to prove that the licensee has failed to cooperate in the investigation.
Some licensees are exempt from providing an email address because they do not have online access or an email address. (Cal. Rule of Ct. 9.9(d).) In such cases, OCTC would continue to transmit letters of inquiry by regular mail.
To initiate a disciplinary proceeding, OCTC would still need to use certified mail. (See Bus. & Prof. Code, § 6002.1(c)).
OCTC believes that the proposed process will be beneficial for all concerned. Licensees will receive the letters of inquiry more expeditiously, and OCTC will know for certain whether the licensees have received the letters of inquiry.
To implement the proposed process, OCTC recommends that two rules be amended:
1. The following language should be added to Rule of Procedure 2409(a) to explicitly authorize OCTC to transmit letters of inquiry electronically:
The Office of Chief Trial Counsel may transmit the letter of inquiry by: (1) posting the letter of inquiry to the member’s "My State Bar Profile" on the State Bar’s website and (2) sending an email notification to the confidential address the member maintains pursuant to rule 9.9(a)(2) of the California Rules of Court. The email notification must state that a letter of inquiry from the Office of Chief Trial Counsel has been posted on the member’s “My State Bar Profile” and remind the member of his or her duty to cooperate and participate in the State Bar’s disciplinary investigation. If the member has not provided the State Bar with an email address pursuant to rule 9.9(a)(2), the Office Chief Trial Counsel shall transmit the letter of inquiry by personal delivery or by regular mail.
2. The following language should be added to Rule of Procedure 5.104 to create a rebuttable presumption that, if not returned as undeliverable, a properly addressed e-mail to the licensee was received by the licensee. This would be an electronic equivalent of the mailbox rule.
(G) Letters of Inquiry.
(i) Proof that the Office of Chief Trial Counsel sent an email notification to a member in compliance with rule 2409(a), Rules of Procedure of the State Bar, coupled with proof that the email was not returned as undeliverable, creates a presumption affecting the burden of producing evidence that the member viewed the email on or about the date it was sent.
(ii) Proof that a letter of inquiry was remotely accessed on a member’s “My State Bar Profile” on a given date creates a presumption affecting the burden of producing evidence that the member received the letter of inquiry on that date.
(iii) The Office of Chief Trial Counsel may establish the proof necessary under paragraphs (i) and (ii) by submitting copies of State Bar records, supported by declaration(s) of State Bar staff attesting to the authenticity and nature of the records.
Following the public comment period, the proposed rules and any comments received will be reviewed by the Board of Trustees during its May 17-18, 2018 meeting.
No negative fiscal or personnel impact is anticipated.
Regulation and Discipline Committee
5 p.m. April 30, 2018
The State Bar of California
180 Howard St.
San Francisco, CA 94105