Division II — Chief Trial Counsel

CHAPTER 1. Chief Trial Counsel

Rule 2101. Authority of the Office of Chief Trial Counsel

The Board of Governors of the State Bar delegates to the Office of the Chief Trial Counsel exclusive jurisdiction to review inquiries and complaints, conduct investigations and determine whether to file notices of disciplinary charges in the State Bar Court, except as provided in Title III, rules 2201 and 2502, and Title II, rules 150-157.

Eff: January 1, 1996.
Source: New (but see TRP 210, 211)

CHAPTER 2. Special Deputy Trial Counsel

Rule 2201. Appointment and Authority

1. The Chief Trial Counsel or designee may appoint one or more Special Deputy Trial Counsel when the Office of the Chief Trial Counsel receives an inquiry or complaint regarding the following:
1. A member employed by the State Bar of California;
2. An attorney member of the Board of Governors;
3. An attorney member of the governing board of any other entity of the State Bar; or
4. A member who has a current or recent personal, financial or professional relationship to the State Bar, its employees, a member of the Board of Governors, or in other appropriate circumstances to avoid the appearance of any impropriety.
2. A Special Deputy Trial Counsel shall have all of the powers and duties of the Chief Trial Counsel and shall act entirely in his or her place or stead with regard to such an inquiry or complaint and any resulting investigation. A Special Deputy Trial Counsel may be removed by the Chief Trial Counsel only for good cause or any other condition that substantially impairs the performance of such Special Deputy Trial Counsel's duties.
3. A Special Deputy Trial Counsel must be an active member of the State Bar, but may not be an employee of the State Bar, a member of the Board of Governors, or a Judge Pro Tempore of the State Bar Court.
4. A Special Deputy Trial Counsel shall not receive compensation for services unless the Chief Trial Counsel has contracted in advance with that Special Deputy Trial Counsel to receive compensation.
5. A Special Deputy Trial Counsel shall comply with the written or other established policies of the State Bar of California and the Office of the Chief Trial Counsel, except to the extent that compliance would be inconsistent with the purposes of this rule.
6. A Special Deputy Trial Counsel may request that the Chief Trial Counsel or designee authorize the payment of reasonable expenses and for investigative, administrative and legal support. The Chief Trial Counsel or designee shall have discretion to determine the amount of financial, investigative, administrative and legal assistance to be provided.
7. The Chief Trial Counsel or designee shall conduct a preliminary review of an inquiry regarding a member described in paragraph (a) to determine whether to appoint a Special Deputy Trial Counsel to investigate the matter.
1. If the Chief Trial Counsel or designee determines that the factual allegations of the inquiry are not sufficiently specific, that the inquiry is not from a credible source or that the factual allegations contained therein, if proven, would not result in discipline of the member, the Chief Trial Counsel or designee shall close the matter.
2. If the Chief Trial Counsel or designee determines that the factual allegations of the inquiry are sufficiently specific, that the inquiry is from a credible source and that the factual allegations contained therein, if proven, may result in discipline of the member, the Chief Trial Counsel or designee shall appoint a Special Deputy Trial Counsel to conduct an investigation and such other proceedings as necessary or appropriate with respect to the inquiry.
3. If the Chief Trial Counsel or designee is unable to determine whether the factual allegations of the inquiry are sufficiently specific and from a credible source, or that the factual allegations of the inquiry, if proven, may result in discipline of the member, the Chief Trial Counsel or designee shall appoint a Special Deputy Trial Counsel to make those determinations and, as warranted, to conduct an investigation and such other proceedings as necessary or appropriate.
8. The preliminary review required by paragraph (g) shall be completed within sixty (60) days after the written inquiry is first received; provided, however, that such time limit is not jurisdictional.
9. The Chief Trial Counsel shall recuse himself or herself with respect to an inquiry received by the Office of the Chief Trial Counsel if:
   1. The inquiry involves the Chief Trial Counsel;
   2. The Chief Trial Counsel believes, for any reason, that his or her recusal would further the interests of justice;
   3. The Chief Trial Counsel believes there is a substantial doubt as to his or her capacity to be impartial; or
   4. A person aware of the facts might reasonably entertain a doubt that the Chief Trial Counsel would be able to be impartial.
   In the event of the Chief Trial Counsel's recusal, the inquiry shall be referred to the Chair of the Board's Committee on Regulation, Admissions and Discipline Oversight, who shall appoint a Special Deputy Trial Counsel to determine whether the factual allegations of the inquiry are sufficiently specific, from a credible source and whether, if the factual allegations contained therein, if proven, may result in discipline of the member. If the Special Deputy Trial Counsel determines that the factual allegations of the inquiry are sufficiently specific and from a credible source and that the allegations, if proven, may result in discipline of the member, the Special Deputy Trial Counsel shall conduct an investigation and such other proceedings as necessary or appropriate.
10. Upon the request of the Board Committee on Regulation, Admissions and Discipline Oversight, the Chief Trial Counsel shall submit a report to the Committee in closed session regarding the number, nature and disposition of inquiries, complaints or investigations involving the members described in paragraph (a), other than the Chief Trial Counsel.

Eff: January 1, 1996. Revised September 1, 2006
Source: TRP 106, 212

CHAPTER 3. Confidentiality

Rule 2301. Records

Except as otherwise provided by law or by these rules, the files and records of the Office of the Chief Trial Counsel are confidential.

Eff: January 1, 1996.
Source: TRP 223 (substantially revised)

Rule 2302. Disclosure of Information

1. Except as otherwise provided by law or these rules, information concerning inquiries, complaints or investigations is confidential.
2. A member whose conduct is the subject of an inquiry, complaint or investigation may waive confidentiality.
3. Notwithstanding the provisions of paragraph (b), the Chief Trial Counsel or designee or the President, may decline to waive confidentiality regarding an inquiry, complaint or investigation, if it is determined that an ongoing investigation may be substantially prejudiced by a public disclosure before the filing of a notice of disciplinary charges.
4. -
1. The Chief Trial Counsel or designee or the President of the State Bar, after private notice to the member, may waive confidentiality concerning a complaint(s) or investigation(s) for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality, including but not limited to the following circumstances:
1. A member or non-member has caused, or is likely to cause, harm to client(s), the public, or to the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. The following additional factors shall be considered in making this determination:


1. The maintenance of public confidence in the discipline system's exercise of self-regulation;
2. The member's current membership status;
3. The record of prior discipline of the member;
4. The potential for the imposition of a substantial disciplinary sanction;
5. The existence of any other public matters;
6. The status of the complaint or investigation;
7. The waiver of confidentiality by the member;
8. The gravity of the underlying allegations; and
9. The member's cooperation with the State Bar.
2. A member or non-member has committed criminal acts or is under investigation by law enforcement authorities;
3. A member or non-member is under investigation by a regulatory or licensing agency, or has committed acts or made omissions which may reasonably result in investigation by a regulatory or licensing agency;
4. The member is the subject of multiple complaints and the Office of the Chief Trial Counsel has determined not to pursue all of the complaints. The Office of the Chief Trial Counsel may inform complainants whose allegations have not been pursued of the status of the other investigations or the manner in which the other complaint(s) against the member have been resolved, e. G., by directional letter, warning letter, admonition, agreement in lieu of discipline, or private reproval; or


2. If the Chief Trial Counsel, for any reason, declines to exercise the authority provided by paragraph (d)(1), or disqualifies himself or herself from acting under paragraph (d)(1), he or she shall appoint a designee to act in his or her place.
3. After a waiver of confidentiality pursuant to paragraph (d)(1)(A) above, the Chief Trial Counsel or designee, may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities.
4. Except as otherwise provided by law or these rules, if the Chief Trial Counsel or designee or the President waives confidentiality pursuant to paragraph (d)(1) through (d)(3), the Chief Trial Counsel, the President or designee may issue, if appropriate, one or more public announcements and may disclose information concerning a complaint(s) or investigation(s) involving a member(s) or non-member(s), which includes a statement of the status or disposition of the complaint(s) or investigation(s); clarifying the procedures involved; and defending the right of the member(s) to a fair hearing on the allegations of misconduct.

(e) Notwithstanding the provisions of paragraph (d), and without waiving confidentiality, the Chief Trial Counsel, in the exercise of discretion, may disclose documents and information concerning disciplinary inquiries, complaints and investigations to the following individuals or entities:

1. To employees of the State Bar Office of the Chief Trial Counsel, the State Bar Office of General Counsel or any Special Deputy Trial Counsel;
2. To members of the Judicial Nominees Evaluation Commission or Review Committee as to matters concerning nominees in any jurisdiction;
3. To witnesses or potential witnesses in conjunction with an inquiry, complaint, investigation, or proceeding;
4. To other governmental agencies responsible for the enforcement of civil or criminal laws, including but not limited to information within the definitions set forth in Business and Professions Code sections 6043.5 and 6044.5;
5. To agencies and other jurisdictions responsible for professional licensing;
6. To the complainant or lawful designee;
7. To the member(s) who is (are) the subject of the inquiry, complaint or investigation or their counsel of record, if any;
8. To judges of the State Bar Court; or
9. To any other person or entity to the extent that such disclosure is authorized by Business and Professions Code sections 6094.5(b), 6086.11, 6086.14 or other statutory provision or any other law.

Eff: January 1, 1996
Source: TRP 220, 221, 224, 227

CHAPTER 4. Investigations

Rule 2401. Purpose of Investigation

The purpose of an investigation is to determine whether there is reasonable cause to believe that a member of the State Bar has violated a provision of the State Bar Act or the Rules of Professional Conduct and if there is sufficient evidence to support the allegations of misconduct.

Eff: January 1, 1996.
Source: TRP 502

Rule 2402. Initiation of Inquiry or Investigation

The State Bar may open an inquiry or investigation on its own accord or upon receipt of a communication concerning the conduct of a member of the State Bar.

Eff: January 1, 1996.
Source: TRP 503

Rule 2403. Complainant

The Complainant is entitled to receive relevant information pursuant to the provisions of the State Bar Act or the Rules of Procedure of the State Bar of California. In matters where communications from more than one person concern the same or substantially the same underlying conduct of the member, there may be more than one complainant. The complainant may be, but is not limited to:

1. a current or former client;
2. one complaining on behalf of a current or former client;
3. one owed or was owed a fiduciary duty and an alleged breach of the fiduciary duty is or should be a subject of the investigation;
4. member of the judiciary or legal professions who alleged misconduct by the member which is or should be the subject of an investigation;
5. a person who has significant new information about an alleged ethical violation committed by the member affecting the professions, the administration of justice, or the public.

Eff: January 1, 1996
Source: New

Rule 2404. Communications Concerning the Conduct of Members

Communications concerning the conduct of a member of the State Bar may be made to the Office of the Chief Trial Counsel at 1149 South Hill Street, Los Angeles, CA 90015- 2299. Complainants may be required to present appropriate information on forms supplied by the Office of the Chief Trial Counsel.

Eff: January 1, 1996.
Source: TRP 504 (substantially revised)

Rule 2406. Effect of Communication to the State Bar

A client or former client who complains against a member thereby waives the attorney- client privilege and any other applicable privilege, as between the complainant and the member, to the extent necessary for the investigation and prosecution of the allegations.

Eff: January 1, 1996
Source: TRP 505 (substantially revised)

Rule 2407. Closure for Failure to Provide Assistance

The Office of the Chief Trial Counsel may, in its discretion, close an inquiry, investigation or complaint if the complainant fails to comply with the State Bar's reasonable requests for assistance, information, or documentation.

Eff: January 1, 1996.
Source: TRP 506 (substantially revised)

Rule 2408. Effect of Restitution or Settlement; Unwillingness of Complainant to Proceed

The Office of the Chief Trial Counsel may continue to investigate and, in its discretion, may prosecute a complaint even though the complainant has asked that the complaint be withdrawn, has failed to properly cooperate with the State Bar, has compromised his or her claim or has received restitution. In exercising its discretion under this rule, the Office of the Chief Trial Counsel shall consider all relevant factors including but not limited to:

1. whether prosecution of the matter is necessary for the protection of the public;
2. whether prosecution of the matter is necessary to assure the public's confidence in the ability of the State Bar to regulate its members;
3. whether prosecution of the matter is likely to result in a significant level of discipline;
4. whether the respondent is or has been the subject of other disciplinary investigations or proceedings;
5. whether it appears that the member has unduly influenced the complainant's decision to request that the investigation be terminated; and/or
6. whether the respondent has acknowledged wrongdoing and has fully compensated the victim of the misconduct.

Eff: January 1, 1996.
Source: TRP 507 (substantially revised)

Rule 2409. Member's Response to Allegations

1. Prior to the filing of a Notice of Disciplinary Charges, the Office of the Chief Trial Counsel shall notify the member in writing of the allegations forming the basis for the complaint or investigation and shall provide the member with a period of not less than two weeks within which to submit a written explanation. Upon request, the Office of the Chief Trial Counsel shall grant the member an additional two weeks within which to submit the written explanation.  Thereafter, any further extension of time for submission of the member's written explanation shall be granted only upon written request to the Office of the Chief Trial Counsel and for good cause shown as to the specific constraints on the member's practice which are claimed to necessitate the additional time. This rule does not prohibit the Office of the Chief Trial Counsel from contracting a member by telephone for purposes of resolution of minor matters or investigation.
2. In response to the Office of the Chief Trial Counsel's written notification pursuant to paragraph (a), the member may provide a written response claiming any applicable constitutional or statutory privilege; however, the availability of an applicable constitutional or statutory privilege shall not excuse the member from submitting a written response to the Office of the Chief Trial Counsel to the extent necessary to identify and exercise the claimed privilege.

Eff: January 1, 1996
Revised: January 1, 2000

Rule 2410. Communications with Current Clients of a Member

1. The staff of the Office of the Chief Trial Counsel may interview the current clients of a member who is under investigation or is the subject of a disciplinary proceeding in the following limited circumstances:
1. with the consent of the member or counsel;
2. when the client has complained against the member or has initiated contact with the State Bar; or
3. to determine whether he or she is a current client of the member. The contact shall cease if it is determined that the person is a current client.
2. The Chief Trial Counsel or designee, may, in his or her discretion, authorize interviews of current clients of a member upon a showing of good cause in writing.

Eff: January 1, 1996.
Source: Board of Governors Resolution of August 29, 1987 (substantially revised)

CHAPTER 5. Subpoenas and Depositions

Rule 2501. Forms for Subpoenas

The Office of the Chief Trial Counsel may promulgate forms for the subpoenas it issues.

Eff: January 1, 1996.
Source: New

Rule 2502. Investigation Depositions

In the course of an investigation, pursuant to Business and Professions Code section 6049, subdivision (b), the Office of the Chief Trial Counsel may compel by subpoena the appearance of a witness at a deposition. The deposition shall be conducted in accordance with Code of Civil Procedure section 2025, subdivision (c) through subdivision (u), inclusive. The Office of the Chief Trial Counsel shall serve a copy of the notice of deposition upon each member whose conduct is being investigated. Such members shall have the right to appear and participate at the deposition and to seek relief from the State Bar Court pursuant to Code of Civil Procedure section 2025 subdivision (i)(1) through subdivision (5), inclusive, and subdivision (i)(8) through (i)(14), inclusive.

Eff: January 1, 1996.
Source: New (but see TRP 323; Bus. & Prof. Code § 6049(b))

Rule 2503. Trust Account Financial Records

1. This rule applies to investigation subpoenas issued by the State Bar directed to financial institutions requiring production of trust account financial records of a member, in compliance with Business and Professions Code sections 6049 and 6069(a), and applies before or after the commencement of a State Bar Court proceeding.
2. A subpoena for trust account financial records shall describe the requested records with particularity and shall be supported by a declaration showing the following:
1. that there is reasonable cause to believe that the financial records sought pertain to trust funds which the member must maintain in accordance with the Rules of Professional Conduct; and
2. that the records sought are consistent with the scope and requirements of the matter under investigation; provided, however, that the Office of the Chief Trial Counsel shall have discretion to make this determination.
   
   Declarations shall be confidential and need not be disclosed to the State Bar Court, the member, the financial institution, or other interested parties at any time.
3. The Office of the Chief Trial Counsel shall notify the member in writing within thirty (30) days after receiving trust account financial records from a financial institution in response to a subpoena issued pursuant to this rule. The notice shall be mailed to member's address furnished pursuant to Business and Professions Code section 6002.1 or to his or her counsel, and shall include:
1. a description with particularity of the financial records actually received; and
2. notice that the member may submit a written request for a statement of reasons for the State Bar's examination of the member's trust account financial records within fifteen (15) days of the date of mailing of the notice.
4. Upon timely and written request, the Office of the Chief Trial Counsel shall provide the member with a statement of the reasons for the State Bar's examination of the member's trust fund financial records.

Eff: January 1, 1996.
Source: Bus. & Prof. Code § 6069(a); TRP 301-303

CHAPTER 6. Disposition of Inquiries, Complaints and Investigations

Rule 2601. Closure of Inquiries, Complaints and Investigations

The Office of the Chief Trial Counsel may, in its discretion, close an inquiry, complaint or investigation. The inquiry, complaint or investigation may also be closed with the issuance of a warning letter or a directional letter or by any other appropriate manner not constituting discipline.

Eff: January 1, 1996.
Source: New (but see TRP 508)

Rule 2602. Disposition by Admonition

1. The Office of the Chief Trial Counsel may, in its discretion, dispose of any matter before it by an admonition to the member.
2. The fact of the admonition shall be communicated to the complainant, if any, but otherwise shall not be public. The Office of the Chief Trial Counsel shall notify the complainant of its action. The admonition does not constitute imposition of discipline upon the member. If within two years after the date of the admonition letter, a State Bar Court proceeding is filed against the member based upon other alleged misconduct, the matter terminated by admonition may be reopened. All applicable time limitations shall be tolled during the period between the issuance of the admonition and the filing of the notice of disciplinary charges.
3. Upon written request of the member, mailed within fifteen (15) days after service of the admonition letter, the admonition shall be set aside and the investigation may be resumed.

Eff: January 1, 1996.
Source: TRP 415 (substantially revised); see also Title II, Rule 264

Rule 2603. Reopening Inquiries, Investigations and Complaints

The Office of the Chief Trial Counsel may, subject to Rule 51 [Period of Limitations], reopen an inquiry, investigation, or complaint in the following limited circumstances:

1. if there is new material evidence; or
2. if the Chief Trial Counsel or designee, in his or her discretion, determines that there is good cause.

Eff: January 1, 1996.
Source: TRP 511 (substantially revised)

Rule 2604. Filing Notices of Disciplinary Charges

The Office of the Chief Trial Counsel may file a notice of disciplinary charges if it finds in its discretion: (1) there is reasonable cause to believe that a member has committed a violation of the State Bar Act or the Rules of Professional Conduct and (2) the member has received a fair, adequate and reasonable opportunity to deny or explain the matters which are the subject of the notice of disciplinary charges.

Eff: January 1, 1996
Revised: January 1, 2000.