SUBJECT

Proposed Amendments to the Standards for Attorney Sanctions for Professional Misconduct

DISCUSSION

The Office of The Chief Trial Counsel submits proposed revisions to the Standards for Attorney Sanctions for Professional Misconduct.  The revisions are intended to:

  1. Revise the Standards so as to comport with decisional law issued after the enactment of the Standards;
  2. Create greater uniformity in State Bar Court suspension recommendations; and
  3. Adopt a broader description of aggravating and mitigating circumstances based on ideas contained in the American Bar Association’s Model Standards for Imposing Lawyer Sanctions.
BACKGROUND

Effective January 1, 1986, this Board adopted the Standards for Attorney Sanctions for Professional Misconduct (Rules of Procedure of the State Bar, title IV; hereinafter “Standards”).  They have been a great success.

The Supreme Court promptly and consistently approved their application to discipline matters, describing them as guidelines for use by the State Bar (Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550).  The Court stated that the Standards “… promote the consistent and uniform application of disciplinary measures.

Hence, we have said that ‘we will not reject a recommendation arising from application of the Standards unless we have grave doubts as to the propriety of the recommended discipline....’ ” (In re Lamb (1989) 49 Cal.3d 239, 245 quoting from Lawhorn v. State Bar (1987) 43 Cal.3d 1357, 1366).  The Supreme Court has directed the State Bar to consider the Standards in every case and to follow them “whenever possible” (In re Young (1989) 49 Cal.3d 257, 277, fn. 11) unless there is a “compelling reason” not to do so (Aronin v. State Bar (1990) 52 Cal.3d 276, 191).  The Court has also directed the State Bar to provide reasons for any departure from the Standards (Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5). 

In its most recent attorney discipline case, the Supreme Court reiterated its position that the Standards are entitled to “great weight” (In re Silverton (2005) 36 Cal.4th 81, 89-92).

The Standards have not been substantively revised in the intervening 24 years.  The Office of the Chief Trial Counsel believes that:

  1. Some specific Standards should be revised in accordance with the manner in which they have actually been applied in the decisional law;
  2. The Standards should be amended to facilitate greater uniformity in State Bar Court suspension recommendations; and
  3. The Standards governing aggravating and mitigating factors should be revised to more closely follow the American Bar Association model standards and Supreme Court precedent.
PROPOSAL

1.  Standard 1.2(b) [Aggravating Circumstances]: The Office of the Chief Trial Counsel recommends that Standard 1.2(b) be amended to include additional aggravating circumstances.  These are circumstances which are well established by California case precedent and, in most cases, included as aggravating circumstances in the ABA’s Standards for Imposing Lawyer Sanctions.

2.  Standard 1.2(e) [Mitigating Circumstances]: The Office of the Chief Trial Counsel recommends that Standard 1.2(e) be amended to include additional mitigating circumstances. These circumstances are already established by California case precedent and one of them is included as a mitigating circumstance in the ABA’s Standards for Imposing Lawyer Sanctions.  Also, the Office of the Chief Trial Counsel seeks to amend current Standard 1.2(e)(ix) because the Office of the Chief Trial believes it is too vague as currently written and could be interpreted in a manner that is not consistent with the purposes of attorney discipline sanctions.

3.  Proposed Standard 1.8, Effect of Default: The Office of the Chief Trial Counsel recommends the creation of a separate standard or sanctions for attorneys who default in a proceeding. 

4.  Standard 1.4(c), Suspension from the Practice of Law: The Office of the Chief Trial Counsel recommends amending Standard 1.4(c) to make suspension recommendations more consistent. 

5.  Stayed Suspension: The Office of the Chief Trial Counsel recommends that stayed suspensions be imposed for a minimum of one year and in increments of one year up to a maximum period of five years.       

6.  Actual Suspension: The Office of the Chief Trial Counsel recommends that actual suspensions be imposed in the following standard increments of 30 days, 60 days, 90 days, 180 days, one year, 18 months, two years, three years, and four years.  The Office of the Chief Trial Counsel also recommends that the Standard be modified to recognize that the State Bar Court always recommends proof of rehabilitation as a condition of return to active status following a suspension for two years or longer, and has discretion to do so for shorter suspensions.

7.  Rule 9.20 Compliance: The Office of the Chief Trial recommends that the standard be amended to require rule 9.20 compliance whenever the actual suspension exceeds 60 days.

8.  Standard 1.7, Effect of Prior Discipline: The Office of the Chief Trial Counsel recommends that Standard 1.7(b) be amended to mandate disbarment under the circumstances recognized by decisional law. 

9.  Standard 2.2(b), Offenses Involving Entrusted Funds or Property: The Office of the Chief Trial Counsel recommends that Standard 2.2(b) be modified to authorize reprovals or suspensions for specified violations of Rule 4-100(B).  

10.  Proposed Standard 2.3.1, Offenses Involving Sexual Relations with Clients: The Office of the Chief Trial Counsel recommends that the minimum sanction imposed for sexual relationships between attorneys and clients be actual suspension.

FISCAL/PERSONNEL IMPACT

None.

NOTE: Comments may be submitted by regular mail, facsimile transmission or electronic mail.

ATTACHMENTS
SOURCE

Board of Governors, Open Agenda Item MAY 128

COMMENT DEADLINE

July 12, 2010

DIRECT COMMENTS TO

Itzel Berrio
Office of Chief Trial Counsel
The State Bar of California
180 Howard Street
San Francisco, CA 94105
415-538-2541
415-538-2214 Fax