Proposed Amendments to Rules of Procedure of the State Bar, Rules 5.60 and 2502, to Clarify the Definition of Witness

The State Bar seeks public comment on amendments to the rules of procedure governing investigation subpoenas to and depositions of witnesses in disciplinary investigations. 

Deadline: July 13, 2026, 11:59 p.m. (45 days)

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 amendments have been proposed by the Office of Chief Trial Counsel (OCTC) in light of a recent opinion from the State Bar Court’s Review Department, which held that, based on the current language of these rules, OCTC lacks authority to compel the attendance of the attorney who is the subject of the investigation because the term “witness” as used in these rules is not intended to include the attorney. OCTC has filed a petition for review of this decision, and the State Bar is simultaneously pursuing statutory amendments to make clear that OCTC’s ability to take investigative depositions extends to attorney respondents, and not just other witnesses. 

Discussion/proposal

Business and Professions Code sections 6049(b), 6050, and 6052 grant the Chief Trial Counsel broad authority to conduct disciplinary investigations. Among the investigative powers granted to OCTC by these statutes is to “compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the investigation” (Bus. & Prof. Code § 6049(b)). The State Bar’s Rules of Procedure mirror the statutes, recognizing that in disciplinary investigations, OCTC “may compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the investigation.” Rule 5.60; see also rule 2502 (“In the course of an investigation, pursuant to Business and Professions Code section 6049, subdivision (b), the Office of Chief Trial Counsel may compel by subpoena the appearance of a witness at a deposition.”). Notably, neither the statute nor the rules limit the scope of the witnesses whose testimony or production of documents may be compelled. Nor do they exclude from the scope of OCTC’s investigatory subpoena power the attorneys who are the subject of the disciplinary investigation. 

On February 10, 2026, the State Bar Court Review Department issued an opinion upholding an earlier Hearing Department order quashing investigatory subpoenas for testimony from attorneys who were the subject of an OCTC disciplinary investigation. The Review Department’s opinion was based on its interpretation of rules 5.60 and 2502, which it found reflected an intention by the Board of Trustees to prohibit the use of investigatory subpoenas to compel testimony from attorneys who are the subject of the disciplinary investigation. On April 2, 2026, the State Bar filed a petition for review in the California Supreme Court arguing that the Review Department “improperly interpreted a procedural rule to restrict statutory authority given to the State Bar during investigations.” 

As explained in the State Bar’s petition for review, the ability to subpoena attorneys under investigation is essential in certain cases for OCTC to conduct a thorough investigation and make the required determination whether there is sufficient evidence to support disciplinary charges. The statutory requirement that attorneys cooperate with disciplinary investigations (see Bus. & Prof. Code § 6068(i)) is not a substitute because, while OCTC can pursue discipline based on a refusal to cooperate, this will not provide OCTC with the information sought. In contrast, a refusal to comply with an investigatory subpoena permits OCTC to seek to compel compliance through contempt proceedings. Moreover, written inquiry letters cannot, and were never intended to, substitute for sworn examination, particularly where credibility assessments, factual disputes, evolving explanations, multiple accused bad actors, or complex timelines require examination under oath. Similarly, post-charging discovery under the applicable rules of procedure (rules 5.61 and 5.66) is distinct from and cannot substitute for the ability to issue investigative subpoenas, which serve a distinctly different purpose, allowing OCTC to gather information prior to charging for the purposes of determining whether public discipline charges are appropriate. 

At its February 2026 meeting, the Board of Trustees adopted as one of its 2026 legislative priorities the pursuit of statutory amendments to “clarify that OCTC’s ability to take investigative depositions extends to attorney respondents, and not just other witnesses.” Pursuant to this legislative priority, the State Bar is pursuing amendments to Business and Professions Code section 6049(b) to clarify that “witness” includes “the attorney who is the subject of the investigation.” The proposed amendments to the rules accord with this legislative priority.  

The proposed amendments to rules 5.60 and 2502 would clarify that the term “witness” as used in these rules does not categorically exclude attorneys who are the subject of a disciplinary investigation, and that these attorneys may, like other witnesses, be the subject of investigatory subpoenas compelling their testimony or production of records. 

Any fiscal/personnel impact

None.

Background materials
Source

Board of Trustees, sitting as the Regulation and Discipline Committee 

Deadline

July 13, 2026, 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.

For further questions, please email communications@calbar.ca.gov.