The Review Dept. of the State Bar Court has granted the request of the Association of Discipline Defense Counsel and the Association of Southern California Defense Counsel for publication of the Court’s decision in In the Matter of Yee.
Yee is a case that arises out of State Bar’s annual audit of MCLE compliance, a practice that began in 2011. The respondent in question was part of the first audit after she had affirmed her compliance with the 25 hour MCLE requirement on line on January 31, 2011. When she was asked to provide proof, she was unable to locate her records. She completed the 25 hours required after the compliance period and paid a late fee. In response to the State Bar’s investigation regarding her affirmation of compliance, she stated
At the time I made the affirmation, I recalled and believed that I had complied. In reviewing my records, I now believe that I made a mistake.” She explained, “I transitioned to a new job in mid-February 2009 and recall that I took classes prior to starting my new job. . . . I cannot find a record of those classes. [¶] . . . [¶] . . . [I]t is
possible that I may have confused classes that I took to satisfy the prior compliance period with
the current . . . period.” [She] acknowledged that “my records were and are lacking” and accepted
responsibility for her “error in memory and recordkeeping.”
The Office of Chief Trial Counsel argued that the respondent was culpable of intentionally misrepresenting her compliance with MCLE requirements and asked for thirty days of actual suspension. The Hearing Judge found that she was grossly negligent in making the representation and that this supported a finding of moral turpitude. Based on the lack of dishonest intent and an extensive showing of mitigation, the Hearing Judge recommended a period of stayed suspension, a downward departure from Standard 2.7.
On appeal, the State Bar again argued for thirty days of actual suspension. Since the first discipline cases were filed in 2012 based on inaccurate affirmation of MCLE compliance, a thirty day actual suspension has consistently been the State Bar position in this cases, regardless of mitigating circumstances, a stance that one discipline defense counsel described at the time as “a meat axe approach.” (Daily Journal subscribers, see DeBenedictis, “Discipline defenders grumble about State Bar’s continuing-education crackdown; State Bar is proposing discipline that doesn’t match offenses, lawyers say” Los Angeles Daily Journal December 12, 2012. Discipline defense counsel observed that many of the lawyers caught in the MCLE dragnet were older lawyers, near retirement or actually retired, often with limited computer skills
The last point matters because discipline is based on what is necessary to protect the public, not based on a “gotcha” system designed to pick off low hanging fruit. The state of mind of the actor making the representation is of utmost importance. The context of information presented digitally is often more difficult to ascertain than information presented on paper to those of us who grew up in the age of paper documents. Older attorneys often suffer from health problems that affected their ability to concentrate and remember. None of it seemed to matter to the Office of Chief Trial Counsel. Dishonesty to the State Bar was a serious matter and must be dealt with harshly.
A State Bar lawyer expressed amazement that lawyers continue to misrepresent their MCLE compliance even after all the publicity surrounding the audits and the harsh discipline imposed. The response is that lawyers are largely not intentionally misrepresenting compliance, so the hoped for in terrorem effect of the audit does not deter their uninformed behavior, which may or may not be grossly negligent under the circumstances.
The dissent in Yee offers hope on that last issue. Judge Remke questions whether this respondent’s conduct is so negligent as to be grossly negligent, citing Supreme Court authority that should help us establish some limits to the ever-expanding gross-negligence-as-moral-turpitude concept (see In the Matter of Downey (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 151, 155.*) Moreover, she questions why we are even wasting our time with this “disservice to the discipline system” in light of the respondent’s eventual compliance with the MCLE requirements.
The publication of Yee will hopefully induce State Bar prosecutors to take mitigation into account when making settlement offers in these MCLE cases. There are going to be more of them coming down the line with the most expansive audit in progress now. At this time, the State Bar Court Hearing Dept. is facing a 20% depletion in manpower with Judge Honn’s move to the Review Dept. and there will be downtime even if a judge is appointed to that spot soon. Plenty of opportunity for further disservice to the discipline system.
* Judge Remke’s decision in Downey deferred to the Hearing Dept.’s finding that the respondent’s conduct was grossly negligent when the facts suggested a level of culpability better described as reckless disregard for the truth; by squeezing it into the “gross negligence as moral turpitude” the decision expands it in directions not contemplated by the decisions cited in her dissent in Yee.