Proposed Amendment to Rule of Procedure 5.80 (Motion for Entry of Default)
The State Bar seeks public comment on a proposal to amend rule 5.80 of the State Bar Rules of Procedure, which sets out procedures for filing a motion for entry of default following a respondent attorney’s failure to timely file a response to a Notice of Disciplinary Charges (NDC).
Deadline: January 7, 2022
Direct comments to
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
Rule 5.80 sets forth the procedures for seeking the default of a respondent attorney who failed to file a timely response to an NDC. Subdivision (B) of rule 5.80 states that a motion for entry of default must be supported by a declaration establishing either (1) a signed return receipt for the NDC was received from the attorney or (2) if not, “the deputy trial counsel took those additional steps a reasonable person would have taken under the circumstances to provide notice.” The proposed revisions to rule 5.80(B) would provide additional clarity and consistency by specifying the steps that should be taken to provide notice in the absence of a signed return receipt.
Discussion/proposal
Where a respondent attorney has failed to file a timely response to an NDC, and the Office of Chief Trial Counsel (OCTC) has not received a signed return receipt for the NDC, subdivision (B) of rule 5.80 requires that a motion for entry of default must be supported by a declaration that shows “the deputy trial counsel took those additional steps a reasonable person would have taken under the circumstances to provide notice.”
To provide clarity and ensure consistency, the proposed revision would replace the general requirement for those steps “a reasonable person” would take by specifying the steps that should be taken depending on the circumstances. Further, the proposed revision would specify that additional steps to provide notice are not required where the record establishes that the respondent has actual notice of the proceedings. On at least one occasion, the OCTC was ordered to take additional steps to notify the respondent of the proceedings despite the fact that the respondent had actual knowledge of the proceedings and had chosen not to respond to the NDC. The proposed revision would also specify what constitutes sufficient proof of the required steps, and that proof of these steps creates a presumption affecting the burden of producing evidence that the licensee has actual notice of the proceeding.
The proposed rule would require that before a motion for default could be filed, the OCTC must submit a declaration providing evidence that:
A signed return receipt for the NDC was received from the attorney; or
If a signed return receipt for the NDC was not received from the attorney, the OCTC posted the NDC to the attorney’s “My State Bar Profile” page, the OCTC sent notice to the attorney’s electronic service address that a document was posted, and the posted NDC was accessed by logging into the attorney’s “My State Bar” profile; or
If a signed return receipt for the NDC was not received from the attorney, the posted NDC was not accessed, and there is no other evidence that the respondent has actual notice of the proceeding, the OCTC attempted to contact the respondent via email, first class mail, or telephone, at any contact information discovered by:
Reviewing the respondent’s file for any other recent and known addresses where the OCTC reasonably believes the respondent may be found;
Reviewing the respondent’s file for any known telephone numbers and electronic message or email addresses;
If the respondent had been ordered to comply with probation or reproval conditions pursuant to orders issued by the California Supreme Court or the State Bar Court, checking with the Office of Probation for the respondent’s latest contact information;
Conducting at least one Internet search for any other known and available contact information for the respondent using a reasonably available, free search engine; and
e. If conviction proceedings were involved, making reasonable efforts to contact the respondent’s defense counsel, if known, for contact information.
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.
