Ad Hoc Commission on the Discipline System Recommendations

The State Bar seeks public comment on recommendations adopted by the Ad Hoc Commission on the Discipline System.

Deadline: November 28, 2022

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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.

Background

The Board of Trustees established the Ad Hoc Commission on the Discipline System to assess the initiatives, policies, and procedures implemented to improve the efficiency, effectiveness, and fairness of the attorney discipline system and to identify any additional improvements needed. The 26-member commission began its work in April 2021 and included members with a broad array of backgrounds and expertise in the legal profession and regulatory agencies. The commission conducted a comprehensive review of the initiatives, policies, and procedures the Office of Chief Trial Counsel (OCTC) developed and implemented over the last several years.

Discussion/proposal

Discipline Costs and Sanctions

The State Bar recovers costs associated with disciplinary investigation and court proceedings as directed by Business and Professions Code section 6086.10. However, State Bar determines the exact costs imposed. Attorneys who do not pay discipline costs have their license to practice suspended until payment is made. Current discipline costs range from $3,693 to $24,695. Discipline costs are imposed on attorneys even if they are not found “guilty” by the State Bar Court on some or all allegations of misconduct.

In addition, disciplined attorneys can be ordered to pay sanctions of between $1,000 and $5,000, mandated by Business and Professions Code section 6086.13.

In studying the issues of discipline costs and sanctions the Ad Hoc Commission on the Discipline System found that:
State Bar discipline costs are much higher than those assessed by other state bars, comparable California regulatory boards, and other state attorney regulatory agencies;
No other states identified imposed sanctions in any amount.
The current cost structure unfairly penalizes attorneys for contesting charges of misconduct, with costs increasing if attorneys chose to go to trial.

As a result, the commission recommended that the Board of Trustees:

Reevaluate the current discipline cost model with a focus on reducing costs. This includes, but is not limited to, restructuring the costs structure so that attorneys are not penalized for going to trial or review and scaling fees when charges are dismissed.
Seek a statutory amendment to eliminate disciplinary sanctions.

Early Neutral Evaluation Conferences

The commission explored the phase of the discipline process. The ENEC is a settlement conference held before OCTC files a Notice of Disciplinary Charge and its purpose is for all parties to obtain a judicial evaluation of the case. Attorneys facing discipline for criminal conviction matters are not given the option to settle their cases with an ENEC because the current statutory timeline does not allow sufficient time for an ENEC to be offered, scheduled, and conducted. Business and Professions Code section 6101 requires OCTC to transmit criminal conviction cases to the State Bar Court Review Department within 30 days of receipt if it determines that the case may or does involve moral turpitude.

As a result, the commission recommended that the Board of Trustees:

Seek a statutory amendment to extend the deadline for the transmission of criminal conviction matters in misdemeanor cases to allow for an ENEC.

Attorney Discipline on State Bar Website and Expungement of Attorney Discipline Records

The commission explored policy issues relating to public access to attorney discipline history and expungement of discipline records.

With regards to posting discipline history, the Ad Hoc Commission on the Discipline System found that:

Although there is no statutory or rule requirement that the State Bar display public discipline history on the licensee’s attorney profile page on the State Bar’s website, the State Bar has chosen to facilitate the public’s right of access to attorney disciplinary records posting it; and
There is currently no time limit on how long such information is posted, contrary to the practice of other similarly situated state agencies, such as the Medical Board of California.

With regards to discipline record expungement, the Ad Hoc Commission on the Discipline System found that:

Despite the existence of Business and Professions Code section 6092.5(e), which states the State Bar shall “Expunge the records of the State Bar as directed by the California Supreme Court” there is no formal process for attorneys to petition the Supreme Court for expungement.

As a result, the commission recommended that the Board of Trustees:

Adopt the following timelines for removal of the attorney discipline from the website attorney profile page and for expungement of attorney discipline records:
- Private reproval: One year of when conditions are met.
- Public reproval: Three years.
- Probation with stayed suspension: Three years of conclusion of probation.
- Probation with actual suspension: Five years from reinstatement.
- Disbarment: Public indefinitely (no change).

Eligibility for expungement of the attorney discipline record would be based on no new discipline or active investigations during the period, and payment of all restitution.

Moral Turpitude

The commission explored the experiences of respondents who are charged with moral turpitude. Moral turpitude is discussed in Business and Professions Code section 6016 as follows: “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”

Attorneys can be charged with moral turpitude as an original matter or when OCTC seeks discipline for a criminal conviction. Business and Professions Code section 6101 requires OCTC to transmit criminal conviction cases to the State Bar Court Review Department within 30 days of receipt if it determines that the case may or does involve moral turpitude. Attorneys are ineligible for participation in the Alternative Discipline Program, a program that supports attorneys whose misconduct stems from mental health or substance abuse, if their misconduct involves moral turpitude, a program that involves treatment.

In its study of moral turpitude, the Ad Hoc Commission on the Discipline System found that:

Criminal conviction matters based on misdemeanor cases have high rates of nondisciplinary action and pretrial case dismissal initiated by OCTC.
There is no rule (or sufficient time) that authorizes either an ENEC or other pretransmittal meeting in a misdemeanor criminal conviction proceeding, at which respondents or the State Bar Court could weigh in on whether a respondent’s misdemeanor criminal conviction involves moral turpitude or other misconduct warranting discipline.
There appears to be ambiguity within the State Bar rules involving referrals to the Alternative Discipline Program, with one rule effectively disallowing participation without the opportunity for attorneys to litigate moral turpitude allegations.
OCTC is not bound to follow judges’ judicial evaluations during the ENEC process, even those that raise concerns regarding a lack of evidence to support moral turpitude charges.

As a result, the commission recommended that the Board of Trustees:

Direct staff to work with stakeholders to study possible revisions to all applicable rules to determine the feasibility of conducting a pretransmittal meeting similar to an ENEC in misdemeanor conviction matters subject to rule 5.340–5.347 that would determine whether or not the facts and circumstances underlying the misdemeanor conviction involve moral turpitude or other misconduct warranting discipline and if appropriate, evaluate a potential disposition of the matter.
Direct staff to work with stakeholders to study and clarify all applicable rules involving referrals to the Alternative Discipline Program, specifically concerning whether or not moral turpitude has resulted in significant harm to a client or the administration of justice.
Direct staff to work with stakeholders to propose revisions to all applicable rules to promote the use of ENECs as a mechanism for arriving at prefiling settlements of State Bar disciplinary proceedings.

Progressive Discipline

The commission explored discipline standards 1.8 and 1.6 adopted by the Board of Trustees to ensure consistency in disciplinary proceedings. The State Bar currently follows a policy of “progressive discipline,” which means each successive incident of discipline should generally be more severe than the last. The rationale for what is commonly referred to as progressive discipline is that a prior record of discipline is a significant aggravating factor in determining the appropriate level of discipline.

There was widespread interest among commission members in modifying standards 1.8 and 1.6 to enable greater judicial discretion to reduce the impact of racial disparities in discipline on future outcomes.

The commission recommended that the Board of Trustees:

Analyze and modify standards 1.6 and 1.8 to permit the greater exercise of judicial discretion regarding progressive discipline.

Attorney Representation

State Bar research showed that racial disparities in discipline outcomes can be partially explained by racial disparities in attorneys having representation as they engaged in disciplinary proceedings.

The commission learned about the State Bar Court’s Appointed Counsel Program, a program that appoints counsel when a licensee asserts a claim of insanity or mental incompetence or when the State Bar Court finds the licensee unable to perform competently due to mental infirmity or illness.

As a result, the commission recommended that the Board of Trustees:

Implement a State Bar-Appointed Counsel Program based on an hourly rate structure similar to the State Bar Court’s Appointed Counsel Program.

Eligibility for the program would be limited to attorneys who qualify for reduced license fees (2022 threshold is $60,500 in gross annual individual income from all sources).

Any fiscal/personnel impact

There is no fiscal impact for the requested action. State Bar staff will generate a projected fiscal impact of the final recommendations submitted by the commission to the Board subsequent to the public comment period.

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Ad Hoc Commission on the Discipline System Recommendations

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