PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Governors of the materials published

SUBJECT

Proposed Online Posting of Consumer Alert re Attorneys Charged with Significant Loan Modification Misconduct and Petition filed under Business & Professions Code section 6007(c) involving Loan Modification Misconduct -Release for Public Comment

BACKGROUND

A particularly challenging aspect of ensuring public protection is minimizing the risk of continuing harm when a lawyer remains on active status pending the resolution of filed disciplinary charges alleging significant loan modification misconduct. Currently, the State Bar posts on its website’s member profile page a filed notice of disciplinary charges and any response to the notice, until such time as an order or decision is filed resolving the disciplinary matter. The website does not currently post a petition filed under Business & Professions Code section 6007(c) to enroll an attorney involuntarily on inactive status based on “threat of harm” to clients or the public.

PROPOSAL

The proposal has two parts. To sufficiently warn about and prevent future harm to clients and the public by lawyers charged with significant loan modification misconduct, the Bar’s website policy should be extended to post a Consumer Alert displayed prominently on the member’s profile page. The Consumer Alert and informational text, coupled with a disclaimer, would be posted upon filing either a notice of disciplinary charges alleging 15 or more cases of loan modification misconduct or a petition under Business & Professions Code section 6007(c) based on any loan modification misconduct (regardless of the number of cases).

The proposed Consumer Alert would contain the following message (the words shown in underline provide hyperlinks to the website):

CONSUMER ALERT The State Bar of California has filed disciplinary charges against this attorney alleging 15 or more cases of loan modification misconduct. Loan modification misconduct is a serious disciplinary offense prosecuted by the State Bar.

To ensure fair treatment of accused members, a disclaimer would immediately follow any Consumer Alert explaining that filed charges are only allegations and the member is presumed to be innocent until the charges have been proven. The proposed disclaimer language would read as follows:

DISCLAIMER: Any Notice of Disciplinary Charges filed by the State Bar contains only allegations of professional misconduct. The attorney is presumed to be innocent of any misconduct warranting discipline until the charges have been proven.

As with the policy on removing a filed notice of disciplinary charges and any response by the member, the Consumer Alert and Disclaimer would similarly be removed upon the filing of a State Bar Court decision or order adjudicating the proceedings.

The second part of the proposed policy provides for posting a petition filed pursuant to Business & Professions Code section 6007(c)[interim inactive status based on threat of public harm] involving any loan modification misconduct, and any response by the member, as set forth in Attachment A. The proposed policy is set forth in Attachment A attached to the RAD agenda item. To view a mock up of the proposed Consumer Alert, informational text and disclaimer, see Attachment B attached to the RAD agenda item.

ANY KNOWN FISCAL/PERSONNEL IMPACT

Some personnel impact is involved, to the extent that staff will be required to identify whether a notice of disciplinary charges or a section 6007(c) petition involves loan modification misconduct, post, and eventually remove the consumer alert and disclaimer upon the filing of a decision or order resolving the proceedings. Where a filed section 6007(c) petition relies upon loan modification misconduct, staff would also be required to identify such petitions, post the petitions and any response, and eventually remove the petition and any response upon the filing of a decision or order resolving the proceedings.

ATTACHMENTS
SOURCE

Regulation, Admissions & Discipline Board Committee (RAD) May 13, 2011- Agenda Item, Action no. III.C

DEADLINE:        June 30, 2011
DIRECT COMMENTS TO:

Jill Sperber
State Bar of California
Office of the Chief Trial Counsel
180 Howard Street, 7th fl.
San Francisco, CA 94105
(415) 538-2023
Fax Number: 415-538-2214
E-mail Address: jill.sperber@calbar.ca.gov