The State Bar seeks public comment on proposed changes to the Rules of Procedure of the State Bar that will authorize the State Bar Court to continue to conduct court proceedings remotely and on a permanent basis.
Deadline: January 7, 2022
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.
Effective April 6, 2020, the Judicial Council of California adopted Emergency Rule 3 of the Rules of Court (Emergency Rule 3) in response to the COVID-19 pandemic, which authorizes courts to conduct judicial proceedings remotely as an important means of balancing access to justice and the health of parties, court staff and judicial officers, and the public. Since April 2020, the State Bar Court has relied on Emergency Rule 3 to conduct nearly all court proceedings remotely by video using Zoom technology and by telephone.
Proposed changes to Emergency Rule 3 will exclude civil proceedings and the State Bar Court will no longer be able to rely on that rule to conduct court proceedings remotely. The proposed amendments to the Rules of Procedure of the State Bar will authorize the State Bar Court to conduct court proceedings remotely and on a permanent basis, allowing for continuity of remote court proceedings, which has benefited the parties and their counsel through reduced travel time and expense and to which the parties and their counsel have become accustomed.
The State Bar Court is proposing two new Rules of Procedure, rules 5.17 and 5.18, and an amendment to existing rule 5.154 to continue to authorize State Bar Court proceedings to be conducted remotely. If adopted, the parties would be able to continue to appear remotely for all court proceedings, including but not limited to settlement conferences, pretrial conferences, trials, and oral argument.
Proposed rule 5.17 is a new rule and applies to all court proceedings in the Hearing Department except for evidentiary hearings and trials. The proceedings will be conducted remotely unless a party provides notice of their intent to appear in person and subject to certain limitations, including that the judge retains discretion to require an in-person appearance. A judge’s decision to require a remote appearance or require in-person appearance is not reviewable.
Proposed rule 5.18 is a new rule applies to evidentiary hearings and trials in the Hearing Department. These proceedings will be conducted in person unless a party gives notice of the party’s intent to appear remotely. Another party, however, may oppose the remote appearance by showing why remote testimony or a remote appearance should not be allowed. If there is opposition to a remote appearance, the judge must determine whether to permit remote technology over a party’s opposition. A judge retains discretion to require an in-person appearance for the same reasons provided in rule 5.17. The judge’s decision to permit or deny a remote appearance is subject to interlocutory review in the Review Department.
Proposed amendments to rule 5.154 will authorize oral argument in the Review Department to be conducted remotely by video. As proposed in rules 5.17 and 5.18, the court may require an in-person appearance if an in-person appearance would materially assist in the determination of the proceeding or the effective management or resolution of the case; due to the quality of the technology or audibility at a proceeding; or if the court otherwise determines that an in-person appearance is necessary.
The proposed rules permit the parties to provide notice of their intent to appear remotely or appear in person using two new State Bar Court forms, which are intended to simplify the notice requirements set forth in the proposed rules.
Not Applicable
Board of Trustees
January 7, 2022