Legislature Chills Non-Lawyer Participation in Providing Legal Services

Independence is often referred to as one of the core values of the legal profession. This value is reflected in American Bar Association Model Rule 5.4, entitled “Professional Independence of A Lawyer.” Model Rule 5.4(a) provides that a “lawyer or law firm shall not share legal fees with a non-lawyer…” with some narrow exceptions. Model Rule 5.4(b) forbids a lawyer from forming a partnership with a non-lawyer “if any of the activities of the partnership consist of the practice of law.” Subsection (c) of the Model Rule states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” Finally, Model Rule 5.4(d) says that a lawyer may not practice in the form of a professional corporation or other association if a non-lawyer holds any interest in the entity, is a director or similar member of the control group, or otherwise has the right to control the professional judgment of the lawyer. The rationale is that non-lawyers, unbound by the lawyer’s professional obligations, may make decisions that are not in the clients’ best interest in the name of more profit for the business entity.

California has adopted its version of Rule 5.4 with a few differences, including some recently enacted. The California Rule allows sharing of legal fees with non-profit organizations, either fees awarded by a court or fees obtained by settlement, with the client’s informed written consent. The most recent changes were adopted after a State Bar task force on Access Through Innovation of Legal Services (ATILS) issued a report in May 2020 recommending some dramatic changes in the professional rules with the stated goal of increasing access to legal services. Independence always comes at a price, and, in the view of many ATILS participants, the price of lawyer independence includes the pricing of legal services beyond the reach of many consumers of legal services. ATILS advocated that a “sandbox” be created to explore other models for delivery of legal services that would remove or modify the traditional prohibition on non-lawyer involvement:

As a longer term objective, the Task Force recommends ongoing study of further revisions to rule 5.4. If, following study, a regulatory sandbox is developed, it is anticipated that applications for participation would be encouraged from law firms and from alternative legal services providers (ALSP) such as non-lawyer owned and operated technology firms, and business collaborations of lawyers and non-lawyers. On the one hand, the Task Force is well aware from public comments received and other input that the longstanding restrictions on fee sharing and non-lawyer ownership serve to protect an attorney’s exercise of independent professional judgment in providing legal advice and services. On the other hand, the Task Force regards rule 5.4 as central to advancing innovation in the delivery of legal services and has heard from technologists and others that this rule is a significant inhibitor of new delivery systems that might otherwise be brought to market by non-lawyer entities or co-owned collaborations of lawyers and non-lawyers. Once deployed, the data from sandbox trials, which would be conducted pursuant to Task Force recommendation #5 could inform whether, and to what extent compliance enforcement standards and risk based proactive auditing by a regulatory oversight body could balance consumer protection and access goals in the absence of a prophylactic ban on fee sharing and non-lawyer ownership.

Emphasis added. If anything, the ATILS final report understates the tsunami of criticism that greeted its tentative proposal in July 2019 to remove barriers to non-lawyer participation in the delivery of legal services, although it notes that 73% of the 2,865 public comments were opposed to one or more of its tentative proposals.   Most of those negative comments were, as can expect, from attorneys.

Moreover, its final report advocating the experimental “sandbox” admits that there is no empirical evidence that removing the traditional prophylactic prohibitions embodied in Rule 5.4 would actually increase access to justice. “Sandbox” is computer programing jargon for a security protocol for testing unproven or untrusted software code. The use of the word emphasizes the tech-heavy orientation of ATILS. It also emphasizes the lack of empirical data showing that non-lawyer ownership would significantly impact the “justice gap.”  It confirmed the fears of ATILS critics that the tech entrepreneurs were more interested in applying their disruptive business models to the legal services marketplace to make a lot of money, not to advance the cause of increasing access to justice.

The May 2020 ATILS report appeared when other states were conducting their own studies of access to justice and moving much faster than California. Arizona became the first state to completely repeal Rule 5.4, effective January 1, 2021. Utah jumped into the “sandbox” with its own more limited version of reform in August 2020. Following the final ATILS report, the State Bar of California moved ahead with its “sandbox” program through its Closing the Justice Gap Working Group (CTJG).

But a funny thing happened on the way to the sandbox. The Girardi scandal exploded in March 2021in a series of incendiary articles in the Los Angeles Times and the unprecedented admission by the State Bar of California in August 2021 that “mistakes” were made in handling the many complaints against the recently disbarred lion of the plaintiff’s personal injury bar. At about the same time, the California State Auditor published a report criticizing the State Bar for its growing backlog of cases. Matters came to a head in December 2021 when the Chairs of Judiciary Committees in both houses of the California legislature, Mark Stone and Tom Umberg wrote to State Bar Board Chair Ruben Duran, making their point in no uncertain terms:

The CTJG has been exploring a proposed regulatory sandbox and proposals that would recommend allowing a participant in the sandbox who is not a licensed attorney to be exempt from existing statutory laws regarding the practice of law and rules of professional conduct. Our Committees have prioritized protecting consumers from unscrupulous actors, including those seeking to do business in the legal field. Corporate ownership of law firms and splitting legal fees with non-lawyers have been banned by common law and statute due to grave concerns that it would undermine consumer protection by creating conflicts of interest that are difficult to overcome and fundamentally infringe on the basic and paramount obligations of attorneys to their clients. Corporations are driven by profits and demands for returns to shareholders, and do not have the same ethical duties and not subject to the same regulatory oversight as lawyers. The regulatory sandbox could become an open invitation for profit-driven corporations, hedge funds, and others to offer legal services without appropriate legal training, regulatory oversight, protections inherent in the attorney-client relationship, or adequate discipline to detriment of Californians in need of legal assistance. Any proposal that would materially change current consumer protections for clients receiving legal services and fundamentally alter the sacrosanct principles of the attorney-client relationship would be heavily scrutinized by our Committees.

One of the ways the California Legislature exercises the regulatory oversight of the State Bar that is shared with the Supreme Court is the fee bill that allows the State Bar to collect license fees from attorneys, the organization’s lifeblood. AB 2958, this year’s fee bill, was amended on June 15, 2022, to add the following language:

SEC. 3. Section 6034.1 is added to the Business and Professions Code, to read:

6034.1. (a) A committee or subcommittee of the California State Bar exploring a regulatory sandbox or the licensing of nonattorneys as paraprofessionals shall do all of the following:

(1) Prioritize protecting individuals, especially those in need of legal assistance, from unscrupulous actors, including those actors seeking to do business in the legal field, above all else.

(2) Prioritize increasing access to justice for indigent persons.

(3) Exclude corporate ownership of law firms and splitting legal fees with non-lawyers, which has historically been banned by common law and statute due to grave concerns that it could undermine consumer protection by creating conflicts of interests that are difficult to overcome and fundamentally infringe on the basic and paramount obligations of attorneys to their clients.

(4) Adhere to, and not propose any abrogation of, the restrictions on the unauthorized practice of law, including, but not limited to, Sections 13405 and 16951 of the Corporations Code.

(b) This section does not limit the State Bar’s ability to provide limited practice licenses to law students and law graduates under certain conditions, and with the supervision of an active State Bar-licensed attorney.

(c) This section does not limit the examination of the use of technology to increase access to justice for lower income and indigent persons so long as proposals adhere to, and do not propose any abrogation of, the restrictions on the unauthorized practice of law, including, but not limited to, Sections 13405 and 16951 of the Corporations Code.

(d) The State Bar shall not expend any funds, regardless of the source, on activities that do not meet the requirements of this section.

While the sandbox remains alive, it seems doubtful that the sweeping reforms sought by “technologists and others” allowing non-lawyers to own and direct the provision of legal services will see the light of day for the foreseeable future.

State Bar Ad Hoc Commission Votes for Fairness; OCTC Takes a Powder

Sometimes she wins.

The State Bar’s Ad Hoc Commission on the Discipline System met on June 1, 2022. In a series of lopsided votes the Commission voted to make sweeping changes to the discipline system to make it fairer.

The Commission was formed by the Board of Trustees in 2020 in the wake of the Farkas report which found disparate discipline outcomes based on race. The stated goal of the Commission was to undertake “a comprehensive review of California’s attorney discipline system with the goal of ensuring that it is both fair and effective in protecting the public.” The Commission was charged with reporting its findings and recommendations to BoT by June 30, 2022. It met on June 1, 2020, and approved the following recommendations by overwhelming votes.

Early Neutral Evaluation Conference

The Commission on the Discipline System recommended seeking a statutory amendment to extend the deadline for the transmission of criminal conviction matters in misdemeanor cases to allow for an Early Neutral Evaluation Conference. Yes: 12. No: 1. Absent: 12.

Costs Associated with Discipline

The Commission on the Discipline System recommended the Board of Trustees reevaluate its 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. Yes:  13. No: 0. Absent: 12

The Commission recommended that the State Bar seek a statutory amendment to eliminate disciplinary sanctions. Yes: 12. No: 0. Absent: 13

Attorney Representation

The Commission recommended the Board of Trustees implement a State Bar Appointed Counsel Program based on an hourly rate structure similar to the 6007 Court Appointed Counsel Program. Yes:  13. No: 1. Absent: 11

Progressive Discipline

The Commission recommended that State Bar Board of Trustees analyze and modify Standards 1.6 and 1.8 to permit the greater exercise of judicial discretion with regards to progressive discipline.Yes:  10. No: 0. Absent: 15

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

The Commission recommended 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:  1 year after all conditions are met
  • Public reproval:  3 years
  • Probation with stayed suspension:  3 years of after conclusion of probation
  • Probation with actual suspension:  5 years from after reinstatement
  • Disbarment:  Public indefinitely (no change)

Yes:  9. No:  0. Abstain: 3. Absent: 13

These recommendations will now be reduced by State Bar staff to final report that will be presented to BoT. What happens then is anybody’s guess.

In its penultimate meeting, one where important votes were taken on recommendations, a large number of members failed to attend, including both Mr. Moawad and Ms. Lawrence, representatives of the Office of Chief Trial Counsel, the discipline prosecution office. We don’t know the impact will this have on whether these recommendations are adopted but it seems likely that OCTC will push back against all of these recommendations using the familiar all-purpose “public protection” rubric.

If so, that will be a shame. These recommendations address glaring inequities in the discipline system that have long existed, especially in the area of cost recovery and the punitive sanction statute. As pointed out in the course of the Commission’s work, California charges far more in costs than any other state and the way cost recovery is structured creates enormous leverage to settle cases on unfair terms. Similarly, the implementation of the punitive sanction statute is fundamentally at odds with a discipline system that, as we are told repeatedly, exists not to punish but to protect the public. Sanctions were sold as a way to fund the Client Security Fund, and only implemented after 25 years when the State Bar sought fee increases from the Legislature. We are going to find out something about the fundamental character of the State Bar of California in the upcoming discussion of these recommendations. Is there a place for fairness? Or is it largely about money?

12,000 Days Later – What I Have Learned About Legal Ethics

It has been said that every problem looks like a nail if the only tool you have is a hammer. The point of that jape is that we are all prisoners of our own experience. Experience is the tool we use to understand the world, and its limits naturally define how we understand it. 

So you understand where I am coming from when I say that ethics is the most important part of your practice as a lawyer.

I did not always think so. I went to a good law school. I studied all the things that I was told were important, the familiar list of subjects you need to know to pass the bar examination. The Big Ones – contracts, torts, civil procedure, criminal law, constitutional law, evidence. What I did not know (because no one told me) was knowledge of these things was not particularly important for the practice of law. Important for passing the bar examination, yes, and valuable, but not particularly important for the actual practice of law.

The really important things were crammed into a single two-unit course that I took toward the end of my first year, titled Ethics, Counseling, and Negotiation. It seems strange to me now that 90% of what I do as a lawyer was covered in a two-unit course.

A two-unit course that no one, not even the instructor, seemed to treat as particularly urgent but rather as more annoying but necessary information. Many of my fellow law students understood the purpose of the ethics component of the course as a checklist of things to avoid getting into trouble. A negative approach, not an explanation of what it means to be a lawyer. That was state of the art in 1983.

And so I never even read the California Rules of Professional Conduct until the day I went to work for the State Bar of California, a little over 12,000 days ago. I had never given legal ethics much thought until then, not even when I prepared for the Multistate Professional Responsibility Examination required for admission. And when I say prepared, I mean that I did not prepare at all. Just pick the “goody two-shoes answer,” I was told. And I passed.

Like most of my peers, I had gone to law school to make a good living while doing interesting work, certainly not to change the world. I had experience before law school in commercial finance, so that was an obvious path to my first goal as a lawyer, to be a business trial lawyer.

But a funny thing happened on the way there. Working in the high-pressure world of business litigation, I began to see that there was something wrong with the environment I was working in. Something wrong with the win at any cost mentality I was expected to embrace. Something wrong with using the law as a cudgel to beat business competitors into submission. Something wrong in being expected to work seven days a week, 12 hours a day. I was, admittedly, a slow learner. It wasn’t until a bench officer called me into his chambers to blast me and my firm for filing multiple ex-parte applications intended for no other purpose than to drive up the cost of litigation for the other side, that I really knew I was on the wrong path.

On a cold rainy Saturday night spent in the law firm library on an impossible research assignment, I picked up the California Lawyer magazine and saw an ad for a job at the State Bar of California. Maybe I can do this for a couple of years while I figure out what I want to do, I thought.

Now, here I am, having spent more than 12,000 days laboring in the field of legal ethics, passing through a State Bar career as a staff lawyer, discipline prosecutor, and a manager, passing through a career as a private practitioner, defending lawyers in discipline proceedings and advising lawyers on the law of legal ethics.  

What I have learned is that legal ethics is not an afterthought, not a checklist of potential trouble to avoid but the vital organizing principle central to what our profession is all about. All the other stuff is important, but it isn’t coherent without legal ethics, which is at the core of our daily work. As the Court of Appeal said in McClure v. Donovan, (1947) 82 Cal. App. 2d 664 “An attorney has a constant and perpetual rendezvous with ethics.”

The Preamble to the American Bar Association Model Rules of Professional Conduct is the best statement of what lawyering is all about. I recommend reading the entire Preamble, but here are some of the highlights:

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.”

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.”

Neither the Preamble nor the Model Rules are the law in California. But our California Rules of Professional Conduct, which are binding law in California, refer to them, as well as other persuasive authorities, as important for interpreting the California rules (Rule 1.0 [comment 4] “In addition to the authorities identified in paragraph (b)(2), opinions of ethics committees in California, although not binding, should be consulted for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

Knowledge of the California Rules of Professional Conduct is a must for California lawyers, as is knowledge of the statutory duties binding on lawyers in the State Bar Act, principally, but not exclusively, in Business and Professions Code section 6068. Like any other body of law, it is presumed that a lawyer knows the Rules of Professional Conduct and the State Bar Act.  Ignorance is not a defense. The Rules are enforced through professional discipline, which can include suspension of license and, if the violations are serious, disbarment.

 Keeping up with the volume of binding, black letter law of legal ethics is challenging for lawyers because it is constantly growing. The new California Rules of Professional Conduct adopted in 2018, incorporating many of the Model Rules, is about three times longer than the prior Rules. But it is a challenge that can be met through self-study and MCLE.  

Legal ethics is not something that only affects “bad” lawyers. It truly is a constant and perpetual rendezvous for every lawyer that needs to be at the forefront of every lawyer’s consciousness. What I have learned about legal ethics after 12,000 days is that the most formidable legal ethics challenge is to break through the complacency and lack of focus that busy lawyers so often succumb to.

State Bar: Transparency for Thee But Not For Me

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There is a lot of information on the State Bar of California website. But one thing you will not find. You won’t find decisions from the Hearing Department of the State Bar Court.

The State Bar Court page has a link to Hearing Department decisions. But you won’t find any after January 2019. That is, you won’t find recent ones. Instead, you will see this:

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Hearing Department decisions are accessible from April 2014 through January 2019, at which point they vanish. If you want to see a Hearing Department decision after January 2019, you will have to know the specific case number or Respondent’s name.

Not coincidently, January 2019 was when the State Bar’s new case management system, aptly named Odyssey, came online. The same Odyssey implicated in the recent disclosure of confidential information now conceded to be the result of a flaw in the software provided by Tyler Technologies, the State Bar vendor, and not the result of some nefarious hack.

Long ago in the mists of history, longer even than the nine years Odysseus wandered on the wind dark ocean sea, the Association of Discipline Defense Counsel (ADDC) asked then Chief Trial Counsel James Towery (now Judge Towery) to provide copies of the Hearing Department decisions. The reason was to educate defense counsel about what was happening in State Bar Court to better advise their clients on what to expect in State Bar Court litigation and obtain knowledge that might lead to better trials and more settlements. Only about 50% of respondents are represented by counsel in the State Bar Court and not all of them by members of the ADDC. Only two institutions are privy to the complete picture of what goes on in the State Bar Court, the Court itself and the prosecutor, the Office of Chief Trial Counsel (OCTC). Discipline defense counsel are like the blind men in the parable: a trunk here, a leg there but no overall appreciation for what the elephant was. Judge Towery readily agreed.

Later on, in 2014, the State Bar Court began publishing links to a monthly list of decisions from the Hearing Department, a rather lazy solution compared to the full access the State Bar Court affords to decisions published and unpublished from the Review Department. But a better solution in terms of allowing access to the public at large access and understanding of the work of the Hearing Department. And, most importantly, a solution that allowed access to the entire corpus of that work, the cases where OCTC was successful as well as the cases where OCTC was not successful, either because the recommended discipline was less than that advocated by OCTC or because OCTC failed to prove any part of its case, resulting in a dismissal of charges.

Transparency and the public’s right to know have been trumpeted by the State Bar in advocating many policies, including posting the notices of disciplinary charges on the State Bar’s website before those charges are proven and the posting of the Consumer Alert badges in ever-expanding categories of cases, most recently, cases involving felony convictions.

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These measures serve to protect the public, it is argued, by alerting consumers of legal services that the attorney that they might be thinking of hiring presents a potential danger. But it also serves the State Bar’s purpose to assure the public and the profession that it is zealously working to protect them. For the same reasons, attorneys who have been publicly disciplined are subject to publicity regarding their discipline, including inclusion in the Discipline Reports published in traditional legal newspapers and, more recently, postings on LinkedIn.

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Discipline defense counsel know they do because we often achieve good results for our clients at trial, sometimes including complete dismissals. But the second purpose, the public relations purpose, isn’t served by disseminating information regarding OCTC’s failures. Finding information on the cases that OCTC loses, including how far they fell short and why is difficult.

But the overall picture is murky. The State Bar does publish statistics in the Annual Discipline Report but no detailed information as to why cases filed in State Bar Court are resolved with no action. For instance, the Annual Discipline Report for 2020 contains an entry for cases closed by the State Bar Court with no action, with an explanatory footnote stating that this could occur for many reasons, including “(1) respondent was disbarred in another matter; (2) respondent was ordered inactive pursuant to Business and Professions Code section 6007(b); (3) respondent’s death, shortly before or after dismissal; (4) respondent’s resignation; (5) dismissal by OCTC; and (6) dismissal by State Bar Court.”

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As you can see, those numbers are not broken down by the types listed in the footnote.

Moreover, while complete dismissals are relatively few, there are no statistics on the much larger number of cases where OCTC sought a higher level of discipline than was ultimately decided on by the Court. This information can only be understood by an examination of the decisions themselves.

When Odyssey went live in January 2019, we were told that it would lead to greater transparency because it would allow the publication of the entire State Bar Court docket in each case online. This is true but misleading. More information is not necessarily better information, and without access to all Hearing Department decisions in one place, it is impossible for outsiders to fully analyze just how well OCTC is doing, measured by the yardstick of success in State Bar Court. Undoubtedly, OCTC closely analyzes each Hearing Department decision to determine whether to appeal it to the Review Department.

This information should be easily obtainable. Yet efforts by defense counsel to obtain these decisions have so far met with no success. And because State Bar Court no longer publishes even links to the decisions, they remain hidden from public view, accessible only in the dockets of individual cases. This is odd given that Review Department decisions are easily accessible. Whatever the explanation, this is incompatible with a government agency that has made transparency and the public’s right to know a central argument for publicizing its work.



Public Protection Zealotry: Is There a Limit?

No one expects this.

Lawyer disciplinary proceedings exist to protect the public. This value is enshrined in California Business and Professions Code section 6001.1:

Protection of the public, which includes support for greater access to, and inclusion in, the legal system, shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (Amended by Stats. 2018, Ch. 659, Sec. 3. (AB 3249) Effective January 1, 2019.)

Those functions must be conducted with due process:

The United States Supreme Court held in In re Ruffalo (1968) 390 U.S. 544, 550—551, 88 S.Ct. 1222, 20 L.Ed.2d 117, that where administrative proceedings contemplate the deprivation of a license to practice one’s profession they are adversary proceedings of a quasi-criminal nature and procedural due process must be afforded the licensee. Emslie v. State Bar, (1974) 11 Cal. 3d 210, 229.

Due process has been described as “flexible and calls for such procedural protections as the particular situation demands.” Conway v. State Bar (1989) 47 Cal. 3d 1107, 1113, citing Morrissey v. Brewer (1972) 408 U.S. 471, 481. The Conway court also cites Mathews v. Eldridge (1976) 424 U.S. 319 333 for the proposition that the “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'”

The public protection mission of the State Bar is resolute. The due process rights of lawyers in the disciplinary process are flexible. When they conflict, which one will give way? To ask the question is, of course, to answer it.

Evidence abounds. On Friday March 24, the Executive Committee of State Bar Board of Trustees is considering the following proposal for its Legislative agenda:

Expedited Efforts to Protect the Public from Those Who Pose a Substantial Risk of Harm

Current law (Business and Professions Code section 6007(c)(2)) [the statute at issue in Conway] authorizes the State Bar Court to order that an attorney be involuntarily enrolled inactive upon finding that: (1) the attorney has caused or is causing substantial harm to their clients or the public; and (2) there is a reasonable probability both that OCTC will prevail on the underlying misconduct matter and that the attorney will be disbarred. These involuntary inactive proceedings are undertaken to expeditiously stop an attorney from continuing to practice while the underlying misconduct matter is proceeding at its normal pace. This proposal would instead allow the court to enroll attorneys involuntarily inactive where the attorney is a reasonable probability that the attorney will be subject to an actual suspension of 12 months or more and the other criteria are met. The proposal will enhance the State Bar’s ability to protect the public where there is a showing of substantial harm, by permitting an early interim suspension where a lengthy actual suspension is reasonably probable. This is limited to attorneys who have committed serious misconduct and pose a risk to the public. Under the existing law, if the State Bar Court finds that OCTC has presented substantial evidence that an attorney has multiple misappropriations totaling over $100,000, but the attorney has no prior record of discipline, the attorney is not reasonably likely to be disbarred under the discipline standards. As a result, such an attorney would continue to have the ability to practice, engage new clients, access client trust accounts (CTAs), and engage in similar activity until the investigation concludes, OCTC files a Notice of Disciplinary Charges, the State Bar Court recommends discipline, and the Supreme Court approves that recommendation. Under the facts noted above, although a lengthy actual suspension would be imposed, it is not clear that disbarment would result. The proposed amendment to Business and Professions Code section 6007(c)(2) would allow the court, in this example, to protect existing and future clients by halting the ability of this attorney to continue to practice while the process moves forward. Between 2017 and 2021, OCTC has sought involuntary inactive enrollment for 11 attorneys pursuant to section 6007(c)(2), with the majority of those occurring in 2019 at seven cases. OCTC estimates that these numbers will double under this proposal.

The proposed change would expedite the discipline process to allow a suspension after something less than a full trial with a burden of proof (reasonable probability) substantially lower than the burden of proof in a full trial (clear and convincing evidence) and without the approval of the California Supreme Court. The lawyer would still be entitled to a full trial, but with little point; even if the lawyer is fully exonerated, permanent damage has been done, including damage to the lawyer’s ability to fund the defense. The rationale behind the interim remedy is that the attorney is inflicting ongoing harm, but the proposed mechanism refers to the likely discipline for misconduct already charged. It is a thinly disguised mechanism for expediting the discipline process while significantly less due process.

All in the name of public protection, but where is the evidence that this fast track will protect the public better than the discipline process as it already exists? None is cited, and it may be confidently predicted that none will be offered. None ever is. The fact that the Office of Chief Trial Counsel says it will protect the public is all the evidence needed. Discipline exists to protect the public; therefore, more discipline always means more public protection, right?

The modern discipline system is built on this dubious logic. The only procedural change sought by the Office of Chief Trial Counsel in the last 30 years that has not been granted has been permanent disbarment, and a variation on it was worked into Cal. Rule Ct. 9.10(f) in the wake of the Silverton decision.

The California State Bar has a commission looking into the fairness of the discipline system. That commission is focused on racial disparities in discipline outcomes, not the overall fairness of the system. If section 6001.1 is taken at face value, a discipline system that treated every lawyer equally unfairly would be perfectly acceptable if it resulted in greater public protection. And so the “dozens of initiatives, policies, and procedures to improve access to and efficiency and effectiveness of the attorney discipline system and to enhance protection of the public” in the last few years will be followed by dozens more in the future. Will we see an endpoint, at point at which all the public protection which is possible has been achieved? At the risk of seeming kafkaesque, I think not.

How Do You Solve A Problem Like John Eastman?*

A much less vexing problem.

The State Bar of California announced this week that it had initiated a State Bar Investigation into John Eastman, former Champman University professor and a principal Trump legal advisor following the 2020 Presidential Election. The Chief Trial Counsel invoked his power under Business and Professions Code section 6086.1(b)(2) and State Bar Rule of Procedure 2302(d)(1) to disclose the existence of the otherwise confidential information “when warranted for the protection of the public.” The announcement followed the closing of a number of complaints made by individuals that raised questions about whether the State Bar of California was going to take a serious look at allegations that Eastman violated his duties as a California lawyer in advising Trump on ways to overturn the 2020 Presidential Election (see The SBI Mystery.) Coincidentally (?) the announcement occurred just a day before a new court filing by the House Select Committee that Eastman sued in an attempt to avoid providing documents Eastman contends are subject to lawyer-client privilege (https://www.documentcloud.org/documents/21321582-house-select-committee-filing.) That filing revealed email exchanges between Eastman and Vice President Pence’s counsel Gregory Jacob that, in the words of the Committee’s counsel, show Eastman “used his Chapman University email account to email Greg Jacob… on January 5 and 6 urging the Vice President to take illegal action and refuse to count electoral votes.” House Select Committee brief at page 16. The House brief refers to State Bar’s press release and investigation in footnote 8 at pages 4-5.

The Chief Trial Counsel’s decision to invoke a little used exception to confidentiality rules to publicize the Eastman investigation was bound to provoke controversy, as the spirited conversation that ensued on the APRL listserve demonstrated. Not least because the State Bar has invoked those same confidential rules in resisting efforts to learn more about the State Bar’s lack of action against Tom Girardi (see The Secret Girardi Investigation.) Is the Eastman announcement a cynical attempt to play politics by throwing red meat to the anti-Trump mob? Or is it an attempt to address well-founded concerns about State Bar accountability to address lawyer conduct that posed a serious threat to our democracy? Reasonable (and unreasonable) minds can differ.

But there can be little disagreement that the Eastman investigation poses a serious challenge to the Office of Chief Trial Counsel. While it enforces ethical rules, it operates more as a government consumer protection agency than as the ethics police, a fact not well understood by the general public and even a large segment of the legal profession. The political context of the Eastman investigation is not familiar ground; this is far removed from the failures to perform, failures to communicate, client trust account misconduct and dishonesty that are basis of most of discipline. Tools exist, relatively prosaic ones such as California Rule of Professional Conduct 1.2.1, which provides that a California lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” or more exotic ones such as California Business & Professions Code section 6106.1, a McCarthy-era statute that says “Advocating the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, constitutes a cause for disbarment or suspension.” The Rule of Professional Conduct is seldom enforced and the Business and Professions Code section has never been enforced, as far as I can tell.

In matters like Eastman, the State Bar might be expected to act only after a civil or criminal court has made findings that clears a path to discipline. But it is unknown if this will happen and now the State Bar raised expectations that it will do something about Eastman conduct. Doing something means filing some set of charges in State Bar Court where it might lose, given its high burden of proof, clear and convincing evidence. The Chief Trial Counsel move to publicize the Eastman investigation was a gutsy one. It would have been a lot safer to allow the investigation to proceed in secret.

* Apologies to Oscar Hammerstein.