The State Bar seeks public comment regarding proposed rules of procedure governing the review process for adverse decisions related to certification, revocation, and suspension of lawyer referral services
Deadline: January 2, 2020
Business and Professions Code, section 6155, provides for certification of lawyer referral services (LRSs) by the State Bar. Subdivision (f) states, in relevant part, “With the approval of the Supreme Court, the State Bar shall formulate and enforce rules and regulations for carrying out this section, including rules and regulations that do the following: (1) Establish minimum standards for lawyer referral services. . . . (2) Require that the certificate may be obtained, maintained, suspended, or revoked pursuant to procedures set forth in the rules and regulations.” (Bus. & Prof. Code, § 6155, subd. (f).)
Prior to 1996, State Bar staff determined whether applicants for certification or recertification did not meet the minimum standards under Rules of Procedure, former rules 4201 through 4204. Adverse decisions were then subject to review in State Bar Court under Rules of Procedure, former rules 4205 through 4207. After the Supreme Court approved revisions to Rules of the State Bar in 1996, the authority to review staff decisions was vested with the Board of Trustees (then the Board of Governors), which created a two-tier review process conducted first by a designated Board subcommittee, and second by the Board’s Committee on Legal Services. Rules of Procedure, former rules 4201 through 4207 were repealed, effective January 1, 1997.
In 2014, the Supreme Court approved the State Bar’s request to revest review authority with the State Bar Court. This authority is reflected in Rules of the State Bar, rules 3.803 and 3.806.2However, no new Rules of Procedure were promulgated to specifically address this review process.
In January 2019, the Board of Trustees approved and adopted proposed amendments to the Rules of the State Bar regarding the certification and oversight of LRSs, including rules 3.803 and 3.806, and further requested that the Supreme Court review and approve those amendments. The proposed amendments were generally intended to increase public access to the justice system by (1) allowing for the application of technology to produce automated referrals, and (2) strengthening the requirement to provide access to legal services for persons of limited means. The proposed amendments to rules 3.803 and 3.806 were intended to streamline the procedures to obtain review of any adverse State Bar decision regarding LRS certification by moving that review from State Bar Court to the Office of the Executive Director.
In March 2019, State Bar staff filed the request to approve the proposed amendments in the Supreme Court. On April 29, 2019, the Court approved all of the proposed amendments intended to increase public access to the justice system. (See Attachment B.) However, the Court denied approval of the proposed revisions to rules 3.803 and 3.806. (Ibid.) Instead, the Court directed the State Bar to “formulate State Bar Court Rules of Procedure governing review proceedings contemplated under rules 3.803(A)(2) and 3.806(E), and to submit those Rules of Procedure to this court for its consideration and approval.” (Attachment C.)
Under Rules of the State Bar, rules 3.803 and 3.806, the State Bar must provide written notice to an applicant being denied initial certification (rule 3.803(A)), or to an existing LRS whose certification is to be suspended or revoked (rule 3.806(B)). In either case, the applicant/LRS must first request reconsideration by the State Bar. (Rules of the State Bar, rules 3.803(A)(1) and 3.806(C).) When requesting reconsideration, applicants/LRSs must provide a written explanation of their position that is “supported by any relevant evidence.” (Ibid.)
If the State Bar confirms the adverse determination, the applicant/LRS thereafter may “submit a petition for review to the State Bar Court in accordance with its rules.” (Rules of the State Bar, rules 3.803(A)(2) and 3.806(E).)
The Supreme Court’s April 29, 2019 letter states that review in the State Bar Court should “develop an adequate evidentiary record and make impartial factual findings to facilitate this court’s review if and when such a matter arises to this level.” (Attachment B.) Therefore, proposed Rules of Procedure 4201 through 4208 establish a process for an independent review by the State Bar Court of any adverse State Bar determination regarding LRS certification. Because applicants/LRSs are required to support their requests for reconsideration of an adverse State Bar determination by “any relevant evidence,” the proposed Rules of Procedure generally do not permit discovery, except for good cause.
This proposal has the potential to increase caseloads for State Bar Court and the Office of Chief Trial Counsel. However, because State Bar staff has a policy and practice to work with LRS applicants until the application is complete or it is clear that the applicant does not qualify for certification, it is anticipated that any impact will be minimal.
Regulation and Discipline Committee
January 2, 2020
Marc A. Shapp Office of General Counsel The State Bar of California180 Howard St.San Francisco, CA 94105415-538-2517Marc.Shapp@calbar.ca.gov
Please reference the specific item in your comments.
Date/Time/Location of hearing:
Thursday, November 14, 2019 10:10 a.m. - 11:30 a.m. The State Bar of California 180 Howard Street Boardroom, 4th Floor San Francisco, CA 94105