The State Bar seeks public comment regarding a proposed amendment to the State Bar of California Board policy regarding consumer notices and alerts.
Deadline: 5 p.m., July 31, 2018
Since approximately July 2005, the State Bar has posted disciplinary decisions and orders on stipulated dispositions on the licensee’s State Bar Profile page. Since 2008, the State Bar has also posted a copy of any Notices of Disciplinary Charges (NDC), and the licensee’s response to the charges, if any, in the “Disciplinary and Related Actions” section at the bottom of a licensee’s State Bar Profile page. In May and July 2011, the Board determined that some matters warrant more conspicuous notices about disciplinary actions.
On May 13, 2011, the Board approved posting a high-visibility consumer alert that contained general information about the allegations, and a disclaimer at the top of the State Bar Profile page of any attorney against whom a NDC or a petition for involuntary inactive enrollment pursuant to Business and Professions Code section 6007(c) is filed wherein a major misappropriation of client funds is alleged.
On July 22, 2011, the Board approved posting a high-visibility consumer alert that contained general information about the allegations, and disclaimer at the top of the State Bar Profile page of any attorney against whom a NDC or a petition for involuntary inactive enrollment pursuant to Business and Professions Code section 6007(c) is filed alleging 15 or more cases of misconduct related to loan modification.
The Office of Chief Trial Counsel (OCTC) is now proposing to add consumer notices or alerts to a licensee’s State Bar Profile page in the following five situations:
On May 17, 2018, the Regulation and Discipline Committee of the Board of Trustees authorized a 60-day public comment period for a proposed amendment to Board policy regarding consumer alerts.
OCTC proposes to post consumer notices or alerts in the following circumstances:
1. Filing of a Notice of Disciplinary Charges (NDC) and Substantial Threat-of-Harm ProceedingsThis proposal would authorize posting consumer alerts whenever: (1) disciplinary charges are filed against an attorney, or (2) OCTC files a petition alleging that the attorney should be placed on inactive status because he or she poses a substantial threat of harm to the public or clients (Bus. & Prof. Code, § 6007(c)(1)-(3).) In order to make an informed and intelligent decision, clients and prospective clients need to know that their attorney or their prospective attorney is facing disciplinary charges. Similarly, opposing counsel and the courts need this information because a suspension or disbarment order may have a significant effect upon pending litigation.
This consumer alert will be removed from the licensee’s State Bar profile page: (1) if the charges are dismissed, or (2) upon the filing of a decision or order of the State Bar Court adjudicating the disciplinary proceeding based upon the NDC.
Independent of this proposal, the State Bar is currently redesigning the State Bar Profile page of licensees. The current full version of the licensee profile page is included as Attachment D. While different screen resolutions and zooming will affect the area of a website visible on a screen, an example of the visible text on the current licensee profile page without scrolling is in Attachment E. A potential modified version of the licensee profile page is included as Attachment F. Again, while it can be affected by screen resolutions and zooming, an example of the visible text on the proposed modified licensee profile page without scrolling is in Attachment G.
While the modified licensee profile page reformats the identifying information of the licensee and moves the Disciplinary and Related Actions section of the page into view when the consumer navigates to the webpage, it does not highlight that an NDC was filed. If an alert upon the filing of any NDC is deemed overbroad or unnecessary, alternatively, alerts could be posted when charges raising significant public protection concerns are filed (e.g., misappropriation, allegations of moral turpitude, etc.).
2. Imposition of DisciplineIf, after a decision finding culpability or an order adjudicating the disciplinary proceeding is issued, the attorney is placed on probation or is issued a public reproval with conditions, a consumer alert stating that the attorney has been placed on probation or issued a reproval with conditions, and informing the consumer that the order or decision is available in the “Disciplinary and Related Actions” section at the bottom of a licensee’s State Bar Profile page would be posted to the licensee’s State Bar Profile page.
This consumer alert would remain on the licensee’s State Bar Profile page until completion of the reproval conditions or the end of the term of probation.
The attached modified licensee profile page brings the Disciplinary and Related Actions section of the page into view when the consumer navigates to the webpage. However, a consumer alert would proactively alert the consumer that discipline was imposed.
3. Felony Charges Pending in CourtThis proposal would authorize posting consumer alerts whenever felony charges are filed against an attorney in court. To make an informed and intelligent decision about their representation, clients and prospective clients need to know that their attorney or their prospective attorney is facing felony charges. Similarly, opposing counsel and the courts need this information because incarceration, or an order suspending or disbarring a licensee, might have a significant impact upon pending litigation.
Consumer alerts concerning pending criminal charges would only be posted if felony charges are filed in court. Prosecutors are required by law to disclose to the State Bar the pendency of an action against an attorney charging a felony or misdemeanor. (Bus. & Prof. Code § 6101(b)). Prosecutors are similarly required to notify the State Bar of the filing of an Information or Indictment charging an attorney with a felony. (Bus. & Prof. Code § 6068(o)(4)).
The State Bar is required by law to disclose to any member of the public so inquiring any information reasonably available to the State Bar pursuant to the above sections. (Bus. & Prof. Code, § 6086.1(c)). A member of the public navigating to a licensee’s State Bar profile page should be deemed to be an inquiry as to the licensee’s status and potential disciplinary actions. Therefore, consumer alerts for felony charges would assist the State Bar in complying with both statutorily mandated duties: disclosing information regarding pending felony charges and protecting the public.
This consumer alert would be removed from the licensee’s State Bar profile page: (1) upon verification of notice to the State Bar that the charges have been dismissed, or reduced from a felony to a misdemeanor, or (2) upon the filing of a decision or order of the State Bar Court adjudicating a disciplinary proceeding based upon the facts underlying the felony prosecution.
In making this proposal, OCTC is mindful that information about felony charges would be posted prior to any conviction and recognizes that this is controversial. While OCTC believes that such a policy is required to comply with our statutory duty to disclose such information, we recognize that the current trend in handling criminal history information is to limit the circumstances under which people must release criminal history information, including “ban the box” initiatives. As a result, an alternative proposal could be that we post the alert only after any conviction in the matter. However, OCTC believes that statutory amendments may be required to permit more limited consumer alerts in this area.
4. Superior Court Assumption of Jurisdiction Over Attorney’s CaseloadThis proposal would authorize consumer alerts whenever the superior court assumes jurisdiction over an attorney’s caseload. A superior court order assuming jurisdiction requires a finding that: (1) the attorney has one or more active cases and (2) the attorney is unable to practice law because of death, incapacity, suspension from practice, or disbarment. (See Bus. & Prof. Code, §§ 6180, et seq. 6190 et seq.) When an assumption order is issued, it is particularly important that the public, active clients, courts, and opposing counsel be informed.
This consumer alert would be removed from the licensee’s State Bar profile page after the superior court order is rescinded or ended.
5. Inactive Enrollments, Suspensions, Disbarments, and Resignations with Charges PendingThis proposal would protect the public by authorizing consumer alerts whenever an attorney is placed on involuntary inactive enrollment, suspended, disbarred, or resigned for one of the following reasons:
Attorneys who are enrolled inactive, suspended, disbarred, or resign with disciplinary charges pending lose their right to practice law. (Bus. & Prof. Code, § 6125 et seq.) Therefore, it is imperative that clients, prospective clients, opposing counsel, and the courts receive clear notice that the licensee can no longer practice and cannot accept new cases.
When an attorney is enrolled inactive involuntarily for one of these reasons, suspended, disbarred, or resigned with disciplinary charges pending, a consumer alert will be posted stating that the attorney is not entitled to practice law and informing the consumer that the order or decision is available in the “Disciplinary and Related Actions” section at the bottom of a licensee’s State Bar Profile page would be posted. This consumer alert would remain on the licensee’s State Bar Profile page until a return to active status with the State Bar.
These consumer alerts will remain posted until such time as the attorney is reinstated to the practice of law, if ever. All consumer alerts must be removed upon the death of an attorney or former attorney.
Generally, a consumer alert would not apply to cases in which the attorney is enrolled inactive based on mental illness, mental disability, or substance dependency. (Bus. & Prof. Code, §§ 6007(a) & (b)(1) & (b)(3).) In these circumstances, a consumer alert is unnecessary because, in the experience of OCTC, attorneys who assert claims of being mentally incompetent, or have been determined to be unable to practice law due to a mental infirmity or substance dependency, commonly do not engage in the unauthorized practice of law.
A consumer alert would be authorized, however, when the superior court has been required to take over the law practice of a disabled attorney. (Bus. & Prof. Code, §§ 6190, 6007(b)(2).) In such situations, the consumer alert will assist the State Bar in notifying clients, courts, and opposing counsel that the State Bar is in the process of winding down the attorney’s law practice.
Additional staff effort will be required to initiate, update, and remove the consumer alerts. Depending on the number of alerts issued, this may be significant. The new case management system may automate some portions of these efforts.
Regulation and Discipline Committee
5 p.m., July 31, 2018
Written comments may be sent to:
OCTC Public Comment – Consumer Notices and Alerts
The State Bar of California
180 Howard St.
San Francisco, CA 94105 Email: OCTC_Rules@calbar.ca.gov(Subject Line: Public Comment – Consumer Notices and Alerts)