Guidelines for Attorney Mandatory Reportable Actions

Update on Proposed Rule of Court Regarding Fingerprinting

The State Bar of California will file a request with the California Supreme Court this week for approval of a proposed California Rule of Court regarding re-fingerprinting of attorneys. This will allow the State Bar to obtain criminal record information, in compliance with state law. (The full submission to the Court is online here.)

In the interim, the State Bar encourages attorneys to immediately notify the State Bar of any mandatory reportable actions. As a reminder, failure to report mandatory reportable actions in and of itself constitutes violations of various sections of the Business and Professions Code and may subject attorneys to disciplinary action.

FAQ: Attorney self-reporting of criminal activity

To facilitate self-reporting, the State Bar has developed the following overview of reporting requirements:

What do I have to report to the State Bar?

Contact and practice information:

• Current office address and telephone number or, if you have no office, an address at which you may be contacted for State Bar purposes[1]
• Jurisdictions in which you are admitted, the dates of admission, and termination of your license in that jurisdiction[2]
• A confidential email address for communications with the State Bar[3]

Lawsuits and settlements:

• The filing of three or more lawsuits within a 12-month period for malpractice,[4]
• The filing of three or more lawsuits within a 12-month period for wrongful conduct committed in a professional capacity,[5]
• The entry of judgment in a civil action for: fraud, misrepresentation, breach of fiduciary duty, or gross negligence in a professional capacity.[6]
• Settlement or arbitration award for fraud, misrepresentation, breach of fiduciary duty, or gross negligence in a professional capacity — if you are not covered by professional liability insurance.[7]

Reversal of judgment (civil or criminal):

• Reversal of judgment in a proceeding based on findings of misconduct, gross incompetence, or misrepresentation.[8]

Sanctions:

• All sanctions must be reported unless they are less than $1,000 or for failure to make discovery.[9]

Criminal actions:

• The bringing of an indictment or information charging you with a felony,[10]
• A misdemeanor conviction for a crime committed in the practice of law or in which a client was the victim,[11]
• A misdemeanor conviction for a crime that necessarily involves dishonesty or moral turpitude, or an attempt, conspiracy, or solicitation to commit such a crime,[12]
• A felony conviction.[13]

Professional discipline:

• Discipline imposed by a foreign bar, professional or occupational agency, or licensing board in any state (including federal court, bankruptcy court, etc).[14]

Employment of a disbarred, resigned, suspended, or involuntarily inactive attorney:[15]

• There are other requirements when employing or terminating employment of a person who is disbarred, resigned, involuntarily inactive, or suspended. Review rule 1-311 for all of the applicable requirements. The notice has specific requirements which can be found in rule 1-311(D). The form for reporting is available on the State Bar website.

When do I have to report to the State Bar?

The general requirement is that the report must be made within 30 days of the time you have knowledge of the triggering event.[16] There are some exceptions: first, on or before Feb. 1 of each year, you must submit a report if you have been newly licensed in another state or federal jurisdiction, or if your license in another jurisdiction has been terminated.[17] Second, you must make the report to the State Bar prior to or at the time you employ a person who is disbarred, resigned, involuntarily inactive, or suspended.[18] Reporting duties are not stayed while a sanction order is on appeal.[19]

How do I report one of these events to the State Bar?

Changes to your licensee record information may be made on the State Bar website under "My State Bar Profile." The State Bar website offers easy-to-use forms for making other reports. They are listed here under Mandatory Reporting Forms.

I wasn’t personally named in the lawsuit/judgment/order etc., but I am a partner or shareholder of the firm or corporation that was named. Do I need to report?

Yes. Even if you were not named individually, but the firm at which you are a partner or shareholder was named, you must report the action or proceeding.[20] The only exception to this is if you know that the firm has already reported the action; in this instance you are relieved of the obligation.

My client and I were both sanctioned. Do I still need to report it?

Yes. If you are named either individually or jointly with a client or other party you must report the sanctions.

The court or opposing counsel has reported or is required to notify the State Bar. Am I still required to report the event?

Yes. Even if you know that the court, opposing counsel, or some other entity has already made the report to the State Bar or is required to report to the State Bar, your obligation remains.[21]

Who else makes reports to the State Bar?

California criminal prosecutors are required to notify the State Bar when they file criminal charges (felony or misdemeanor) against an attorney.[22]

California courts are required to notify the State Bar when an attorney is convicted of any crime,[23] when an attorney has been found in contempt,[24] when an attorney has been sanctioned $1,000 or more (except for discovery sanctions),[25] when an attorney has been found in violation of certain statutes[26] or when a civil judgment has been entered against an attorney for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.[27]

Insurance companies are required to notify the State Bar upon receipt of a claim or action against an attorney for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.[28]

The Insurance Commissioner reports workers’ compensation fraud to the State Bar.[29]

Banks submit reports to the State Bar when an attorney trust account is overdrawn.[30]

The State Bar is statutorily authorized to receive Criminal Offender Information (CORI[31]) from the California Department of Justice for purposes of admission, discipline, and regulation of attorneys.[32]

The State Bar is statutorily authorized to receive subsequent arrest notification services[33] for attorneys.[34] The State Bar is not currently receiving this information for the majority of active attorneys. If the Court approves the State Bar’s proposed Rule, the State Bar will be receiving subsequent arrest notification services for all active attorneys by December 1, 2019.

Do I need to report arrests?

No. Arrests are not reportable actions under current law, and the fact an attorney has been arrested is not an independent basis for disbarment or suspension.

Disclaimer: The State Bar as a regulatory entity does not provide legal advice to licensees. The information provided in this document should not be used as a substitute for obtaining legal advice. You should always consult a suitably qualified attorney regarding any specific legal problem or matter.

Footnotes

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[1] Bus. & Prof. Code, § 6002.1(a)(1); Cal. Rule of Court 9.9(a)(1)

[2] Bus. & Prof. Code, § 6002.1(a)(3)

[3] Cal. Rule of Court 9.9(a)(1). You may also ask the State Bar for an exemption to the email requirement if you do not have internet access or an email address. (Rule 9.9(d).) You have the option of providing a publicly available email.(Rule 9.9(b).)

[4] Bus. & Prof. Code, § 6068(o)(1)

[5] Bus. & Prof. Code, § 6068(o)(1)

[6] Bus. & Prof. Code, § 6068(o)(2)

[7] Bus. & Prof. Code, § 6086.8(b) & (c)

[8] Bus. & Prof. Code, § 6068(o)(7)

[9] Bus. & Prof. Code, § 6068(o)(3)

[10] Bus. & Prof. Code, § 6068(o)(4)

[11] Bus. & Prof. Code, § 6068(o)(5)

[12] Bus. & Prof. Code, § 6068(o)(5)

[13] Bus. & Prof. Code, § 6068(o)(5)

[14] Bus. & Prof. Code, §§ 6002.1(a)(4), 6068(o)(6). See the statutes for a more detailed description of what must be reported. See also Bus. & Prof. Code, § 6002.1(a)(5) & (b) regarding requirements applicable to attorneys disciplined by the California Supreme Court.

[15] Rule 1-311, Rules of Professional Conduct

[16] Bus. & Prof. Code, §§ 6002.1(a), 6068(o), 6086.8(b) and(c)

[17] Bus. & Prof. Code, § 6002.1(a)

[18] Rule 1-311, Rules of Professional Conduct

[19] See In the Matter of Respondent Y (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 862, 866-867

[20] Bus. & Prof. Code, § 6068(o)(8)

[21] In the Matter of Varakin (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 179, 188-189

[22] Bus. & Prof. Code, § 6101(b)

[23] Bus. & Prof. Code, § 6101(c)

[24] Bus. & Prof. Code, § 6086.7(a)(1)

[25] Bus. & Prof. Code, § 6086.7(a)(3)

[26] Bus. & Prof Code, § 6175.6 (sale of financial products to elders or dependents); Bus. & Prof. Code, § 6086.7(a)(4) (civil penalties for violation of Family Code section 8620 relating to the adoption of minors); Bus. & Prof. Code, § 6086.7(a)(5) (withholding of evidence by criminal prosecutor in violation of Penal Code section 1424.5)

[27] Bus. & Prof. Code, § 6086.8(b)

[28] Bus. & Prof. Code, § 6086.8(b)

[29] See Ins. Code, § 1872.83(a)

[30] Bus. & Prof. Code, § 6091.1

[31] CORI means "Records and data compiled by criminal justice agencies for the purposes of identifying criminal offenders and maintain, as to each offender, as summary of arrests, pretrial proceedings, the nature and disposition of criminal charges, sentencing, incarceration, rehabilitation, and release." Penal Code § 11075;

[32] Bus. & Prof. Code, § 6054

[33] "Subsequent Arrest Notification Report" means reports issued by the DOJ to the State Bar notifying the State Bar of an arrest and the disposition thereof. See Penal Code § 11105.2.

[34] Bus. & Prof. Code, § 6054(c)

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