The State Bar seeks public comment regarding an amended Rule of Procedure of the State Bar governing mandatory and discretionary recusals for the Chief Trial Counsel.
Deadline: November 4, 2019
Current Rule 2201 sets forth grounds for mandatory and discretionary recusals for the Chief Trial Counsel (CTC) for inquiries or complaints involving individuals with close ties to the State Bar. Pursuant to Rule 2201, when the CTC determines that recusal is appropriate, the inquiry or complaint is referred to the Special Deputy Trial Counsel (SDTC) Administrator. The SDTC Administrator conducts a preliminary review to determine whether to close the matter or appoint an SDTC to investigate the matter further. The SDTC Administrator and SDTC act in the place of the CTC with regard to an inquiry or complaint.
In general, the proposed revisions will lessen the mandatory recusal standard to allow Office of Chief Trial Counsel (OCTC) to handle more complaints in-house, and to the extent necessary, screen OCTC attorneys from complaints if there is an appearance that an attorney who is the subject of the inquiry or complaint will not receive fair treatment. The proposed revisions will also provide that SDTCs are permitted to handle other matters within OCTC’s jurisdiction, where OCTC has a conflict.
This item proposes the following amendments to Rule 2201: (1) revising the CTC’s mandatory recusal ground from a judicial conflict of interest standard to a more appropriate prosecutor’s conflict of interest standard; (2) adding “or other matters within the jurisdiction of the Office of Chief Trial Counsel” to allow the SDTCs to handle matters where OCTC has a conflict, and adding subdivision (c)(4) to set forth the Administrator’s duties when reviewing “other matters;” (3) designating certain conflicts currently defined as mandatory conflicts as discretionary conflicts; (4) revising current mandatory recusal subdivision (a)(1)(v) to only apply to the CTC, as opposed to all OCTC staff members; (5) replacing the phrase “current or recent” with “within the past 12 months” to clarify the time period; (6) striking the words “or designee” as it is included in the definition of CTC; (7) including all attorney conflicts for Board of Trustee members in the discretionary recusal section; (8) revising subdivision (c)(2) and (3) to reflect the preliminary review procedure followed by OCTC; (9) replacing pronouns with “the Office of Chief Trial Counsel” or “the Chief Trial Counsel;” and (10) reorganizing subdivision (b) to mirror the format and language in subdivision (a).
Adoption of the proposed rule will reduce the bases for the Office of Chief Trial Counsel’s mandatory recusals under Rule 2201. In turn, this should reduce the number of complaints referred to Special Deputy Trial Counsel Administrator. Because the attorneys who work in OCTC are full time employees and have resources such as investigators and support staff, the complaints should be resolved more efficiently.
Regulation and Discipline Committee
November 4, 2019
Office of General Counsel
180 Howard Street, San Francisco, CA 94105
Please reference the specific rule number in your comments.