The State Bar seeks public comment regarding a proposed amendment to the Rules of Procedure of the State Bar regarding reinstatement cases.
Deadline: 5 p.m., July 31, 2018
Prior to 2011, the Rules of Procedure of the State Bar provided for discovery that was generally consistent with civil discovery rules. In 2011, the Rules of Procedure were amended to implement an abbreviated administrative discovery model. The purpose was to simplify discovery in general State Bar disciplinary cases; however, these changes have negatively impacted the Office of Chief Trial Counsel in reinstatement cases. For example, prior to 2011, former rule 663 of the Rules of Procedure provided for a 120-day investigation period followed by a 120-day discovery period in reinstatement cases. After the rule change, OCTC is given only 120 days to conduct the entire investigation after a petition for reinstatement is filed.
After the rule change, OCTC also lost the ability to perform meaningful follow-up discovery and investigation after the deposition of the petitioner and other evidence produced by way of deposition-related production demands was received.
In reinstatement cases, an attorney who was disbarred or resigned with charges pending has a history of ethical violations that sometimes includes deceit and dishonesty. The deposition is an important discovery tool in these matters. Statements under oath made by the deponent must then be vetted via follow-up investigation and discovery. On occasion, deponents in these matters testify differently than the information contained in their petition or provide information not previously anticipated. In many instances, considerable follow-up discovery is needed to confirm or disprove the additional information. With the abbreviated discovery period, it is next to impossible for us to perform this important work. The result is that the full truth never comes to light and public protection suffers.
There are two types of reinstatement proceedings:
First, to be reinstated, disbarred or resigned attorneys must establish by clear and convincing evidence that they are rehabilitated (see rule 5.445(A), Rules Proc. of State Bar)[1], and their reinstatement is not effective until it is approved by the California Supreme Court (see rule 9.10(f), Cal. Rule of Ct.). These proceedings are called “full” reinstatement proceedings.
Second, attorneys who receive lengthy suspensions must prove by a preponderance of the evidence that they are rehabilitated and possess current learning and ability in the general law before they may return to active status. (Std. 1.2(c)(1), Standards for Atty. Sanctions for Prof. Miscond.) These proceedings are colloquially known as “mini” reinstatement proceedings.
1. Reinstatement Proceedings Should Not Take Precedence Over Disciplinary Proceedings.
Reinstatement proceedings should be completed within a reasonable period of time. However, because public protection is the State Bar’s highest priority (Bus. & Prof. Code, § 6001.1), reinstatement cases should not take precedence over disciplinary and regulatory cases pending in the State Bar Court. To the contrary, in order to assure public protection, OCTC should be given sufficient time to locate, evaluate and present the evidence that is necessary for a determination as to whether the reinstatement applications should be granted.
(a) Full Reinstatement Proceedings (Disbarred and Resigned Attorneys) Should Not Be Expedited.
The State Bar Court’s time-pendency guidelines provide that all proceedings should be completed within eight months:
The Hearing Department’s decision or order regarding complete disposition in a proceeding should ordinarily be filed by the Clerk within eight (8) months of the filing of the initial pleading, unless a shorter time is set forth in the Rules of Procedure.
(Rule 1130(B), Rules of Practice of the State Bar Court). However, it is far more difficult to complete a reinstatement proceeding in eight months than it is to complete a disciplinary case in eight months. The investigation of a disciplinary matter occurs before the Notice of Disciplinary Charges is filed and therefore the time spent investigating a disciplinary case does not count against the eight-month clock. On the other hand, pursuant to Rule 5.443(A) of the Rules of Procedure of the State Bar, OCTC is permitted only 120 days to conduct an investigation after a petition for reinstatement is filed and the 120-day discovery period counts against the eight-month clock.
Trial dates in reinstatement cases are frequently set so close in time to the deposition cut-off date that OCTC must routinely request expedited service to obtain the deposition transcript prior to the start of trial. In a number of instances, trial was scheduled to begin within days of the deposition, thus rendering the deposition virtually meaningless.
The eight-month deadline gives reinstatement proceedings undue calendaring priority compared to disciplinary proceedings. This proposal, if implemented, would change the rules to expressly deprioritize full reinstatement proceedings.
(b) Mini-Reinstatement Proceedings (Suspended Attorneys) Should Not Be Expedited.
The rules of procedure require that proceedings for reinstatement of suspended attorneys “will be expedited.” (Rule 5.400(B), Rules Proc. of State Bar.) The rules implement this by: (1) limiting OCTC’s investigation to 45 days (rule 4.403(A)); (2) requiring the court to schedule a hearing within 35 days after OCTC files its response to the petition for reinstatement (rule 5.403(C)), (3) requiring the court to issues its decision within 15 days after the hearing (rule 5.408), and (4) requiring that the Review Department decide any appeal within 30 days after submission (rule 4.409). This proposal, if implemented, would deprioritize reinstatement proceedings and modify these deadlines.
2. The Trial of a Full Reinstatement Proceeding (Disbarred or Resigned Attorney) Should Not Occur Until OCTC Has Had Sufficient Time to Analyze and Investigate the Representations Made at the Petitioner’s Deposition.
After a reinstatement petition is filed, OCTC has 120 days to investigate the matter. (Rule 5.443(A), Rules Proc. of State Bar.) Within 10 days after the investigation period ends, OCTC must file a response to the application. (Rule 5.443(B), Rules Proc. of State Bar.) OCTC then has an additional 15 days to serve a discovery request ((Rule 5.443(C)), Rules Proc. of State Bar) and 45 days to schedule the petitioner’s deposition (Rule 5.443(D)), Rules Proc. of State Bar).
As a result of the eight-month time-pendency rule, the State Bar Court frequently schedules the trial to occur shortly after the petitioner’s deposition. When this happens, OCTC does not have sufficient time to investigate the veracity of the statements made by the petitioner at the deposition. OCTC therefore requests that rule 5.443 of the Rules of Procedure of the State Bar be changed to allow an additional 120-day period during which OCTC may take the applicant’s deposition, request written discovery, and conduct follow-up investigation.
3. OCTC’s Authority to Investigate Mini-Reinstatement Petitions (Suspended Attorneys) Should Be Strengthened.
Unlike the full reinstatement proceedings applicable to disbarred or resigned attorneys, the rules governing reinstatement proceedings for suspended attorneys: (1) prescribe a lower burden of proof (Rule 5.404); (2) allow for very limited discovery and investigation by OCTC (Rule 5.405); (3) provide for trial by written declaration rather than live testimony (Rule 5.406); (4) allow limited appellate rights (Rule 5.409); and (5) do not provide for direct review by the California Supreme Court (see Rule 5.410).
OCTC has only 45 days to conduct its investigation in this type of reinstatement proceeding. (Rule 5.403(A).) OCTC may take the petitioner’s deposition (Rule 5.405(A)), but is not allowed any other discovery unless the State Bar Court so orders (Rule 5.405(B)). It can be difficult for OCTC to obtain such an order because the current rules require that these proceedings be expedited (Rule 5.400(B)) and because a showing of good cause is required (Rule 5.405(B)).
In order to protect the public, OCTC needs both a longer discovery period and the ability to subpoena necessary records for the hearing. The evidence contained in mini-reinstatement petitions (declarations and exhibits) must be analyzed and investigated.
First, OCTC needs to interview the witnesses who have submitted declarations on the petitioner’s behalf, and possibly other witnesses with knowledge of the issues raised in the petition. This takes time and effort, and should not be done in an hurried manner.
Second, to fully assess or evaluate petitioner’s rehabilitation, OCTC also needs the ability to issue subpoenas related to the facts, declarations, or exhibits supporting the petition. For example, if a petitioner presents medical evidence of rehabilitation, OCTC may need to obtain additional medical records from the doctors identified in the petition. The Legislature intended for OCTC to have such authority:
In the conduct of investigations, the chief trial counsel or his or her designee, may compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the investigation.
(Bus. & Prof. Code, § 6049(b).)
Finally, OCTC must conduct its own independent investigation to ascertain whether the reinstatement petitioner has rehabilitated himself or herself during the years in which he or she was on suspension. The issues include: whether the petitioner has committed new misconduct; whether the petitioner has complied with his or her disciplinary probation; and whether the petitioner has made required reports to the State Bar. If, for example, we learn that petitioner has convictions that were not disclosed, OCTC may need to obtain law enforcement or court records.
None.
Regulation and Discipline Committee
5 p.m. July 31, 2018
OCTC Public Comment – Reinstatement CasesThe State Bar of California180 Howard St.San Francisco, CA 94105Email: OCTC_Rules@calbar.ca.gov(Subject Line: Public Comment – Reinstatement Cases)
[1] “In seeking reinstatement, petitioner bears a heavy burden of proving rehabilitation. (Calaway v. State Bar (1986) 41 Cal.3d 743, 745, 225 Cal.Rptr. 267, 716 P.2d 371; Tardiff v. State Bar (1980) 27 Cal.3d 395, 403, 165 Cal.Rptr. 829, 612 P.2d 919.) He must show by the most clear and convincing evidence that efforts made towards rehabilitation have been successful. (Feinstein v. State Bar (1952) 39 Cal.2d 541, 546–547, 248 P.2d 3.) The evidence presented is to be considered in light of the moral shortcomings that previously resulted in discipline. (Tardiff, supra, 27 Cal.3d at p. 403, 165 Cal.Rptr. 829, 612 P.2d 919; Roth v. State Bar (1953) 40 Cal.2d 307, 313, 253 P.2d 969.)”
(Hippard v. State Bar (1989) 49 Cal.3d 1084, 1091–1092.)