Proposed New Rule 9.33 of the Rules of Court Regarding the Expungement of Nondisbarment Discipline

The State Bar seeks public comment on a proposed new rule 9.33 of the Rules of Court which would permit one-time expungement of nondisbarment discipline from a licensee's public record of discipline.

Deadline: September 24, 2024, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly.

Background

The Board established the Ad Hoc Commission on the Discipline System in November 2020 to assess reforms implemented by the State Bar to further the efficiency, effectiveness, and fairness of the discipline system and to identify any additional improvements needed. On September 22, 2022, the Board received the commission’s final report and recommendations. See Agenda Item 701. At the May 2024 Board of Trustees meeting, the Board, among others, directed staff to draft a proposed Rule of Court regarding expungement of nondisbarment discipline after 8 years. See Agenda Item 60-3.

Discussion/proposal

In response to the Board’s directive to draft a proposed Rule of Court regarding expungement of nondisbarment discipline after 8 years, State Bar staff proposes new Rule of Court 9.33.

• Subdivision (a) of rule 9.33 defines terms applicable to expungement.
• Subdivision (b) defines the effect of expungement. Consistent with the discussion at the May 2024 Board of Trustees meeting, expunged records would be removed from the attorney’s public record of discipline, but the prior discipline could still be used as an aggravating circumstance and as prior discipline under Standards 1.5 and 1.8 of the Standards for Attorney Sanctions for Professional Misconduct, respectively.
• Subdivision (c) requires the State Bar to maintain internal records of expunged information.
• Subdivision (d) provides the requirements to be eligible for expungement of discipline:
  1. Expungement is one-time relief.
  2. Only licensees with one discipline are eligible for expungement.
  3. The licensees must be active, voluntary inactive, or resigned (with or without charges pending)
  4. The licensee must not have any disciplinary matters pending in State Bar Court or before the Supreme Court at the time their prior discipline is expunged – pending matters must be dismissed or resolved without discipline to be eligible for expungement.
  5. At least eight years have passed from the:
     • Effective date of a public or private reproval
     • Termination of a term of probation with a stayed suspension, when there is no actual suspension imposed
     • Termination of probation or reinstatement following termination of the actual suspension, whichever is later

Any fiscal/personnel impact

Adoption of a rule directing the State Bar to expunge discipline from the attorney's record of public discipline would require an information technology investment to develop a solution to automate the expungement in the short term, significant manual work, including by State Bar Court staff, would be required to provide the relief granted by this rule.

Background material

• From the Board of Trustees Meeting September 22, 2022: Agenda Item 701, Final Report and Recommendations of the Ad Hoc Commission on the Discipline System
• From the Board of Trustees Meeting May 16, 2024: Agenda Item 60-3, Ad Hoc Commission on the Discipline System: Approval of Recommendations for Website Removal and Expungement
• From the Board of the Trustees Meeting July 18, 2024: Staff Report Item 5.1, Proposed Amendments to Rules 9.8 and 9.31 of the Rules of Court and Proposed New Rule 9.33 Relating to Expungement of Attorney Discipline and Administrative Actions: Request to Circulate for Public Comment
• Rule of Court in Attachment A to Staff Report Item 5.1

Source

Board of Trustees, sitting as the Regulation and Discipline Committee

Deadline

September 24, 2024, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly.