The State Bar seeks public comment regarding proposed rule changes that are intended to clarify what information comprises an attorney’s public State Bar record and to set forth a single source for attorneys’ mandatory and discretionary reporting requirements
Deadline: December 15, 2019
State Bar Rules 2.2 and 2.3 currently do not provide an exhaustive list of the information that comprises a licensee’s public record, nor of the information that must be verified or updated and on what schedule. Furthermore, pursuant to Objective g of Goal 2 of the State Bar Strategic Plan, the State Bar is seeking to require all attorneys to report firm size and practice sector information to the State Bar. The proposed rule would also require client trust account (IOLTA) information and professional website information to be reported and verified through the same yearly process used to verify other types of required information, and allows the reporting of practice area. Though not encompassed in the rule language itself, the proposal would also be to make practice area a searchable field on the State Bar website.
The current rule structure and language regarding “opting out” of the sale or disclosure of licensee information may result in attorneys erroneously believing that only those pieces of information specifically identified in Rule 2.2 are public. Business and Professions Code section 6026.11, effective January 1, 2016, makes the State Bar of California subject to the California Public Records Act (CPRA), meaning that all records relating to the business of the State Bar that are regulatory in nature are subject to public disclosure unless specifically exempt under state law. This means that all information reported by attorneys that is collected for a regulatory purpose—whether mandatory or optional, and whether displayed on the State Bar website profile or not—is subject to public disclosure, with the exception of private email addresses provided pursuant to California Rules of Court, rule 9.9.
Following the input of the Programs Committee at the July 2019 Programs Committee meeting, staff evaluated the various sources of State Bar reporting requirements and drafted one proposed rule that consolidates, clarifies, and harmonizes the requirements for what information licensees must (or may) provide to the State Bar, as well as updating the language to emphasize that, pursuant to the CPRA, all information in the licensee profile (with the exception of nonpublic email addresses) is public and could potentially be disclosed, whether or not it is posted on the licensee’s profile on the State Bar website. The proposed rule also provides clarity on the requirements for reporting changes to personal information as well as verifying such information.
Certain information that was formerly collected as part of the optional “expanded profile” for attorneys (website, photo, and practice areas) ceased being displayed on the State Bar website in an effort to align the attorney profile with the State Bar’s regulatory mission after the separation of the sections. The proposed rule clarifies what information that was formerly part of the “expanded profile” must be reported, and what information is discretionary. All of that information will again be posted. Although not part of the rule language, the proposal for which the State Bar seeks public comment would also allow the public to “look up a lawyer” by practice area.
This rule does not otherwise address what information will or will not be displayed on the State Bar attorney profile page. Since all information in the official record is public (with the exception of private email addresses), the State Bar has the discretion to determine what information it chooses to post online. This is a policy determination separate from this rule proposal.
This rule proposal reflects an effort to limit the State Bar’s collection of licensee information to only that information necessary for its regulatory purposes. However, to the extent there is or may be licensee information retained by the State Bar that does not relate to the State Bar’s business of regulation and discipline of attorneys, licensees should still be able to limit the sale or disclosure of such information pursuant to Business and Professions Code section 6001(g). To address this conflict, staff added language in proposed Rule 2.2 indicating that all licensee record information listed in the rule is presumptively public and may be subject to disclosure under the CPRA, unless required to be kept confidential by law.
On September 19, 2019, the Programs Committee approved staff’s recommendation to authorize a 60-day public comment period for a proposed revisions to State Bar Rules 2.2, 2.3, and 2.4 regarding the reporting, display, and public nature of licensee information.
The new proposed rules would state the following:
Rule 2.2 Public information; duty to update licensee record
(A) Licensees are responsible for maintaining the accuracy of information contained in their official State Bar record. With the exception of nonpublic email addresses provided pursuant to Rule 9.9(a)(2) of the California Rules of Court, all information contained in the official licensee record is presumptively public, is collected and retained for the State Bar’s regulatory purposes, and may be subject to disclosure under the California Public Records Act unless that disclosure is otherwise prohibited by law.
(B) A licensee shall report to the State Bar, and shall verify with the State Bar at least annually, the following information:
(1) Last name, first name, and any middle names;
(2) A nonpublic email address to be used for State Bar communications;
(3) Office address or, if no office is maintained, an address to be used for State Bar purposes;
(4) Office telephone number, if one is maintained;
(5) A professional website, if one is maintained;
(6) Practice sector;
(7) Law firm size;
(8) IOLTA account information;
(9) All legal specialties in which the licensee is certified;
(10) Any other jurisdictions in which the licensee is admitted and the date(s) of admission;
(11) The jurisdiction, and the nature and date of any discipline imposed by another jurisdiction, including the terms and conditions of any probation imposed, and, if suspended or disbarred in another jurisdiction, the date of any reinstatement in that jurisdiction;
(12) Any other information as directed by the California Supreme Court;
(13) Any other information as may be required by agreement with or by conditions of probation imposed by any other government agency; and
(14) Any other information as may be required by law.
(C) With the exception of certified legal specialties under subsection (B)(9) or admission to a new jurisdiction under subsection (B)(10), a licensee shall report to the State Bar a change in any of the information in subsection (B) no later than 30 days after the change and shall verify such information by February 1 of each year during the license renewal process, as well as at other times as determined by the State Bar. Changes in certified legal specialties or admission to a new jurisdiction shall be reported during the annual license renewal process.
(D) A licensee may report the following information to the State Bar:
(1) An email address to be posted publicly;
(2) Fax number;
(3) A professional photograph;
(4) Area of practice; and
(5) Languages spoken by the attorney or office staff.
(E) The following additional information shall also be part of a licensee’s public record and shall be maintained by the State Bar:
(1) State Bar license number;
(2) Date of admission in California;
(3) Law school attended;
(4) California Lawyers Association section membership, if any;
(5) License status;
(6) Date of any transfer from one license status to another; and
(7) Date and period of any discipline imposed in California.
Rule 2.3 [REPEALED]
Rule 2.4 [REPEALED]
Public comment is also sought on the recommendation that that practice area information be made searchable in the interest of providing useful information to the public, but that the publication of practice area be accompanied by appropriate caveats, which state that the information has been provided by the licensee, but has not otherwise been verified by the State Bar, and that the State Bar cannot attest to any attorney’s performance in any particular area.
Programs Committee Agenda Item III.A
State Bar Board of Trustees Programs Committee
December 15, 2019
Office of General Counsel
180 Howard Street
San Francisco, CA 94105
Please reference the specific item in your comments.