Proposed Change to California Rule of Procedure 5.106 Regarding Prior Record of Discipline

The State Bar seeks public comment regarding a proposed Rule of Procedure of the State Bar regarding prior record of discipline.

Deadline: 5 p.m., July 30, 2018

Background

Rule 5.106 of the Rules of Procedure, dealing with evidence of an attorney’s prior record of discipline, currently provides that evidence of prior discipline is inadmissible until the court makes a finding of culpability, unless the evidence also tends to prove a fact in issue in determining culpability. The Court has historically interpreted Rule 5.106 to require only that a tentative decision of culpability of at least one count be reached to satisfy the requirement of the rule. This proposed amendment of the rule would codify that long-standing interpretation.

Discussion

On May 17, 2018, the Regulation and Discipline Committee of the Board of Trustees authorized a 60-day public comment period for a proposed amendment to Rules of Procedure of the State Bar.

Proposal

This proposal, if adopted, would amend Rule 5.106 to clarify that the court need only make a tentative finding of culpability before receiving evidence of prior misconduct by the respondent, thereby codifying the actual practice.

Following the public comment period, the proposed rules and any comments received will be reviewed by the Board of Trustees during its September 13-14, 2018 meeting.

Any known fiscal/personnel impact

No negative fiscal or personnel impact is anticipated.

Background material

Summary memo, with redline and clean version of rules attached.

Source

Regulation and Discipline Committee

Deadline

5 p.m., July 30, 2018

Direct comments to

Antonia G. Darling
The State Bar Court
180 Howard St.
San Francisco, CA 94105
Phone: 415-538-2233
Email:  sbcrulescomment@calbar.ca.gov
Please reference the specific rule number and title in your comments.