The State Bar seeks public comment on an Amendment to Lawyer Referral Service Proposed Rules of Procedure Governing the Review Process for Certification, Revocation and Suspension Decisions
Deadline: October 30, 2020
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
The background of the original proposed Rules of Procedure 4201 through 4208 was addressed at the November 2019 meeting of the State Bar Regulation and Discipline (RAD) Committee, and the January 2020 meeting of the Board of Trustees. (See Attachment C.) Briefly, in 2014, the Supreme Court approved rules 3.803 and 3.806 of the Rules of the State Bar, which provide for review in the State Bar Court of determinations by State Bar staff to deny, suspend, or revoke the certification of a Lawyer Referral Service (LRS). However, no new Rules of Procedure were promulgated to specifically address this review process. In April 2019, the Supreme Court directed State Bar staff to formulate those Rules of Procedure, and to submit them to the Supreme Court for its consideration and approval. On January 24, 2020, the Board of Trustees adopted Rules of Procedure 4201 through 4208, and directed staff to submit the proposed rules to the California Supreme Court for approval. The request was filed with the Supreme Court on May 8, 2020. On August 5, 2020, the State Bar filed a notice of withdrawal of the request, which the Supreme Court granted the following day.
The Version of Proposed Rules of Procedure 4201 through 4208 Adopted by the Board of Trustees Does Not Reflect Staff’s Intended Recommendation
As adopted by the Board of Trustees, proposed rule 4204 provides, in relevant part: The court will hold a hearing if timely requested by either party and the Court determines that a hearing will materially contribute to the court’s consideration of the petition for review. (Rules of Procedure, proposed rule 4204(B) [emphasis added].)
In other words, proposed Rules of Procedure 4201 through 4208 allow a party to request a hearing, but the decision whether to hold one is ultimately up to the State Bar Court. After the request for approval was filed in the Supreme Court, staff again reviewed internal communications and drafts of the proposed rules. Staff determined that the “and” in proposed rule 4204(B) was the result of an early drafting error that was unfortunately carried throughout the drafting and approval process. The drafters of the proposed rules and the State Bar Court had intended to recommend to the Board of Trustees to adopt the following language for proposed rule 4204(B):The court will hold a hearing if timely requested by either party or the court determines that a hearing will materially contribute to the court’s consideration of the petition for review.
Amending Proposed Rule 4204(B) Eliminates Any Procedural Due Process Concerns
LRS certification determinations arguably implicate a person’s livelihood, and therefore procedural due process may necessitate proper notice and a reasonable opportunity to be heard. (Willner v. Committee on Character and Fitness (1963) 373 U.S. 96, 103.) “Under the California Constitution, the extent to which procedural due process is available depends on a weighing of private and governmental interests involved.” (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1297.)
Based on this weighing of the relevant factors, it is staff’s opinion is that the version of proposed Rules of Procedure 4201 through 4208 as already adopted by the Board of Trustees provides a reasonable opportunity to be heard. This is because the current proposed rules provide multiple opportunities for an applicant or existing LRS to challenge an adverse certification determination—first to State Bar staff and then to the State Bar Court—including the opportunity to request a hearing. As such, the risk of an erroneous adverse determination is relatively remote, while the added benefit of providing for a hearing as of right is speculative.
Even so, amending proposed rule 4204(B) to change “and” to “or” removes any doubt. That is because granting a hearing upon timely request allows a party to offer oral testimony and to confront and cross-examined witnesses, providing what courts have described as the “full range” of due process rights. (See, e.g., Rodriguez, supra, 51 Cal.App.4th, at p. 1299.) Since this additional process is what staff and the State Bar Court intended to recommend at the outset, staff determined that the appropriate course of action would be to bring the issue back to RAD and the Board of Trustees.
This proposal has the potential to increase caseloads for State Bar Court and the Office of Chief Trial Counsel. However, based on the small number of LRS applications that have received adverse determinations from staff, it is anticipated that any impact will be minimal.
Regulation and Discipline Committee
October 30, 2020