The State Bar seeks public comment regarding a proposed amendment to the Rules of Procedure of the State Bar regarding the Rule of Limitations.
Deadline: 5 p.m., July 6, 2018
Currently, there are in excess of 200 cases in which the respondent is enrolled inactive pursuant to subsection (a) or subsection (b) of Business and Professions Code § 6007. All of those cases are either abated or held, the functional equivalent of being abated. The vast majority of those cases are in backlog.
OCTC policy requires quarterly written status reports on each abated or held case. Quarterly reports must include the reasons the matter was abated or held and an analysis of whether the circumstances have changed such that the abated or held status is no longer appropriate. Every second quarter, the complaining witness must also be advised of the status of the matter.
1. Dismissal Without Prejudice of Disciplinary Proceedings
The State Bar Court has authority to place attorneys on inactive status for reasons of mental incapacity. (See Bus. & Prof. Code, § 6007(a) & (b).) A significant portion of these attorneys also have disciplinary allegations pending against them, but these charges cannot be prosecuted unless and until the attorney regains his or her mental capacity. Current rules toll the rule of limitations when a disciplinary investigation or proceeding is abated. (rule 5.21(c)(7), Rules Proc. Of State Bar.) However, these disciplinary investigations or proceedings cannot be closed or dismissed because the Rule of Limitation would run and subsequent refiling and prosecution would be barred. (See rule 5.21, Rules Proc. of State Bar.)
Therefore, under current practice, both the State Bar Court and the Office of Chief Trial Counsel maintain these cases in abated status—often for many years. As a result, the State Bar expends resources in monitoring the status of these cases. For example, the State Bar Court conducts periodic status conferences concerning cases that have been filed. In addition, the Office of Chief Trial Counsel maintains approximately 200 of these abated cases in its investigation inventory.
This proposal would provide that the Rule of Limitations is tolled during the time an attorney is on inactive status because of mental incapacity. This would allow the State Bar Court and the Office of Chief Trial Counsel to dismiss such matters without prejudice to reopening should circumstances change. This would save resources and improve the accuracy of our backlog statistics.
2. Attorney Conceals, Misrepresents, or Fails to Cooperate
Rule 5.21(C) currently provides that the Rule of Limitations is tolled when the attorney conceals facts about the violation (rule 5.21(C)(4)), fails to cooperate with the State Bar investigation (rule 5.21(C)(5)), or makes false or misleading statements to the State Bar about the violation (rule 5.21(C)(6)). These provisions, however, do not clearly state when the tolling periods begin and end. OCTC recommends that the rule’s language be amended to expressly state that the tolling periods begin when the attorney conceals, misrepresents or fails to cooperate and end when the truth is discovered or the attorney substantially cooperates in the investigation. This proposal is similar to Penal Code section 803(c), which states that the statute of limitation for fraud, embezzlement and similar felonies does not begin to run until the offense is discovered.
3. Transition to the Office of General Counsel Complaint Review Unit.
When the Office of Chief Trial Counsel closes an investigation without filing a disciplinary proceeding, the complainant has the right to have this decision reviewed. The Rule of Limitation contains tolling provisions applicable when complainants request such a review. (See rule 5.21(C)(10) & (E).) In 2016, the Board of Trustees transferred responsibility for these complainant appeals from the Audit and Review Unit of the Office of Chief Trial Counsel to the Complaint Review Unit of the Office of General Counsel. (See rule 2603(b), Rules Proc. of State Bar.) However, the Board has not yet amended the Rule of Limitation tolling provisions to reflect this transfer of responsibility.
Any known fiscal/personnel impact
Minor resource savings may result from no longer providing quarterly updates on some abated or held cases.
Regulation and Discipline
5 p.m., July 6, 2018
OCTC Public Comment – Rule of LimitationsThe State Bar of California
180 Howard St.
San Francisco, CA 94105 Email: OCTC_Rules@calbar.ca.govSubject Line: Public Comment – Rule of Limitations