The State Bar of California 2022 Annual Discipline Report is out and it raises a question: how do you measure the thing that didn’t happen?

The numbers we are presented with show that the amount of money spent on the discipline prosecution office, the Office of Chief Trial Counsel (OCTC) increased from $43 million to fiscal year 2018 to $61 million in fiscal year 2022. The overall cost of the discipline system increased from $68 million to $91 million. Over the same time period, the number of attorneys disciplined decreased from 361 to 262, including a decline of 50% in the number of disbarments, a 30% decline in the number of attorneys suspended, but an almost 100% increase in the number of attorneys publicly reproved and a small increase in the number of attorneys privately reproved. The number of cases opened in 2022 than 2018 was slightly less (16,355 versus 16,673) but coming after large increases in the number of cases opened in intervening years, 20,979 in 2020 for instance. OCTC’s inventory of open cases at the end of 2021 was large,10,054.

What do these numbers mean?

One picture is a bloated bureaucracy spending more money than ever before and accomplishing less. That is a view that sits comfortably within decades of criticism of the State Bar by the Legislature and the State Auditor as being too lax on public protection.

But maybe it means just the opposite. Maybe the fewer number of discipline attorneys means that the discipline system is working well by deterring attorney misconduct before it occurs. Isn’t that the reason that discipline proceedings and outcomes are now highly publicized on the State Bar’s website?

We have also made it easier to gather more information on attorney misconduct through measures like online reporting of State Bar complaints. 20,979 cases is a lot of information. This number brings home that most of OCTC’s work is below the waterline, sifting through massive amounts of information to determine what cases must be prosecuted to protect the public.

The question we all want to answer is: do we know that the discipline system achieving its goals, defined broadly by discipline Standard 1.1: protection of the public, the courts and the legal profession; maintenance of the highest professional standards; and
preservation of public confidence in the legal profession.

The question we may not want to answer is: can we know that the discipline system is achieving its goals?

Deterrence is difficult to evaluate because it requires us to measure a thing that does not exist. A cursory search reveals no readily accessible academic research on the deterrent effect of lawyer discipline.* While the discipline system certainly can prevent misconduct by troublemakers by removing them from practice, empirical evidence that it deters misconduct in those not prosecuted cannot be found and may be impossible to find. But we assume that deterrence exists. Since we can’t measure directly whether the discipline system is achieving its goals, we measure by proxy, that proxy being the number of lawyers that are disciplined. In this way, discipline, meant to be a means to achieve the goals of the discipline system, becomes the goal of discipline system.

As circular as this is, this is the only way most people can grasp the numbers in the Annual Discipline Report. By this measure, the discipline system must be failing simply because it is not disciplining enough lawyers. Not when we are spending $91 million a year on it. The truth is that we can never know if the discipline system is protecting the public or not. We can only guess. The paradoxical numbers (more money spent, fewer lawyers disciplined) only confirm that we are guessing.

*A concise general summary of deterrence theory in criminology can be found in Loughran, Deterrence, Oxford Bibliographies https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0167.xml).

Like a Category 5 hurricane can spin off tornados, the widening gyre of Girardi-gate* is spinning off its own series of notable if not controversial agitations, including:

1. The Los Angeles Times litigation against the State Bar, litigation that paid off this week when the State Bar agreed to make public the Girardi files, reversing their position that closed investigations could not be made public. What will these files show? The State Bar would probably not agree to release them if they contain anything more damning than incompetence. They probably would not have agreed to release them if they thought the Supreme Court would sustain their position on confidentiality. There is little doubt that the Supreme Court is not bound by the confidentiality statutes in the exercise of its far-reaching Constitutional power to regulate the law profession. In addition to avoiding an embarrassing reminder of this from the Supreme Court, it appears that realization has occurred that restoration of public confidence in the State Bar will require the sharing of information, perhaps even outside counsel’s report, in whole or in part (see item #6 below.)
2. The Girardi-adjacent re-opening of the investigations of Mark Geragos and Brian Kabateck, announced publicly by the Chief Trial Counsel, after an LA Times story on the diversion of Armenian insurance settlement funds.
3. The State Bar’s newly approved Client Trust Account Protection Program, which will give the Office of Chief Trial Counsel the power to audit client trust accounts under as yet unspecified circumstances.
4. AB 2958, the recently signed State Bar dues bill, which prohibits the State Bar from proceeding with the regulatory “sandbox.” Girardi was cited as proof that the State Bar was distracted from its core mission by these reform activities.
5. The Joe Dunn disciplinary prosecution, another Girardi-adjacent matter involving conduct that occurred many years ago. Geragos is Dunn’s defense counsel in this matter. Dunn and Girardi were both close to mysterious former State Bar investigator Tom Layton.
6. The State Bar’s own investigation into Girardigate*, conducted by outside counsel, Halpern May Ybarra Gelberg LLP. The mysterious Tom Layton became even more mysterious by fighting the State Bar’s subpoena seeking his deposition.
7. State Bar confidentiality. The new Chief Trial Counsel’s willingness to disclose confidential information and abrupt turnaround on its interpretation of Bus. & Prof. Code section 6086.1(b)(2), as well as the recent public pronouncements from the Chief Trial Counsel are causing concern by discipline defense counsel. Where else might it lead?
8. Interest in enacting a version of Model Rule 8.3 in California, the rule that requires a lawyer to report misconduct by another lawyer to the State Bar if it raises a “substantial” question about that lawyer’s honesty or fitness to practice.

*Forgive me the “gate” cliche but the impact of the Girardi scandal is far-reaching, maybe not of Watergate proportions, but as yet not fully realized. Who knows what new horrors await?

Ever have one of those nightmares where you wake up in sheer terror, breath a sign of relief that it is over, go back to sleep…..and plunge right back into it?

The news this week that the State Bar of California has filed discipline charges against its former executive director, Senator Joe Dunn, felt something like that to me. And probably to him too.

I thought we had come to the end of this nightmare in March 2017 when an arbitrator threw out the last of Dunn’s wrongful termination claims against the State Bar. Now, more than five years later, we get to re-live it all again. For those blessed enough to have forgotten, here is the capsule summary:

In September 2010, the State Bar of California chose Dunn as its new executive director to replace the long serving Judy Johnson, who went on to better things as Superior Court judge in Contra Costa County. Part of the reason for his selection was to repair the State Bar’s poor relationship with the Legislature, a perennial project that has been around since circa 1985. His appointment was nakedly political, something almost everyone acknowledged at the time. Dunn had been a political power in the Legislature, CEO and Executive Director of the California Medical Association, one of the most powerful lobbies in Sacramento. To say he was well-connected is probably the understatement of the century. Howard Miller, outgoing State Bar President and Girardi’s law partner before his fall from grace, praised his partner’s friend as “superbly qualified.” Incoming State Bar President Bill Herbert (as quoted in the Met News) praised Dunn as “an exceptional candidate” who “stood out” due to his political background, experience with the non-profit CMA, and “his personality and character.” Dunn is “incredibly thoughtful and considerate,” and inspires trust and confidence in his judgments, statements and decisions,” Hebert said. “He’s got a great reputation and he’s very well respected around the state on both sides of the aisle.” Hebert added that he was “looking forward to collaborating with Joe, the senior executive team and our legislative affairs team to improve our relationship with all our stakeholders” during his tenure as president.

One of the structural features of the discipline reforms was the remove the Executive Director from oversight of the discipline system, instead vesting that in an appointed Chief Trial Counsel subject to confirmation by the State Senate, who would be report directly to the Regulation and Discipline Committee of the Board of Governors (now known as the Board of Trustees.) The idea was to remove the discipline system from State Bar politics. Despite this, one of Dunn’s first actions as ED was to sabotage the pending appointment of Chief Trial Counsel Jim Towery by working behind the scenes to deny Towery the confirmation hearing he needed to keep the job. Swooping into the power vacuum, Dunn then fired the entire senior management in the Office of Chief Trial Counsel (OCTC). But contrary to Dunn’s attorney Mark Geragos, Dunn did not fire San Francisco’s Assistant Chief Trial Counsel Jeff Dal Cerro, who resigned some months later after experiencing the micro-management style of Jayne Kim. These manager-lawyers, who had dedicated more than a century of their collective experience to running OCTC, were unceremoniously escorted from the State Bar building by security. Dunn then engineered the appointment of a protege, Jayne Kim, as Chief Trial Counsel, implying that a new era of zealous disciplinary enforcement was at hand with his comment “there is new sheriff in town” (see Kafkaesq Meet the New Boss, posted, amazingly, way back on July 14, 2011.)

Dunn’s imperious reign continued until 2014. He would enter a room surrounded by his entourage, including the enigmatic Tom Layton, who seemed to be acting his bodyguard. During this time, the State Bar was roiled by the Legislatively created Governance in the Public Interest Taskforce (GITPIT) which was engaged in its multi-year mission of reforming the State Bar’s governance structure. Various reforms were proposed, including random trust accounts, which a proposal ultimately rejected by the Board of Governors. Dunn’s protege Jayne Kim brought her own imperious micro-management style to the Office of Chief Trial Counsel, dispensing with subordinate managers and essentially making every lawyer and investigator a direct report to her, leading to much unhappiness in OCTC. One Deputy Trial Counsel described to me Kim’s middle of night telephone calls chewing him over his actions on a case. That management style would ultimately prevent Kim from serving a second four-year term as Chief Trial Counsel, when her re-nomination was met with vociferous opposition from the State Bar’s unionized workforce. From the outside, Kim and Dunn appeared to be as thick as thieves, a perception that would be dramatically changed when things fell apart in 2014.

The investigation and report commissioned by the Board of Governors from the Munger Tolles and Olsen firm and issued in October 2014 describes how they fell apart. The report details the unraveling of the Dunn regime in Shakespearian terms, including the falling out between Dunn and his onetime protege Kim. The report, foreshadowing the even bigger fiasco to come, discussed the perceived undue influence of the Giardi Keese firm over the Executive Director at pages 20-21 but concludes that “….we have not uncovered instances of any sort of misconduct involving or untoward influence exerted by Tom Girardi or his firm, the closeness of the relationship between some senior managers and that firm does raise potentially troubling perceptions that the Board should take action to rectify going forward.”

Oh, Cassandra!

Now five years after it looked like we were done with Dunn, we are re-visiting events that seem like ancient history. The determination to file discipline charges was made by Special Deputy Trial Counsel, independent lawyers who represent the State Bar when the Office of Chief Trial Counsel has a conflict as provided in State Bar Rule of Procedure 2201:

(a) The Chief Trial Counsel shall recuse the Office of Chief Trial Counsel when:
(1) Any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel is about:
i. The Chief Trial Counsel;
ii. An attorney employed by the State Bar;
iii. An attorney member of the Board of Trustees; or
iv. An attorney who within the past 12 months has had a personal, financial, or professional relationship to the Chief Trial Counsel; or,
(2) The Chief Trial Counsel believes the circumstances of any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel creates an appearance that the office may not exercise its discretionary functions in an evenhanded manner and that those circumstances are so grave as to render it unlikely that an attorney will receive fair treatment or that the public will not be protected.
(b) The Chief Trial Counsel may recuse the Office of Chief Trial Counsel when:
(1) Any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel is about:
i. An attorney, who within the past 12 months has had a personal, financial, or professional relationship to the State Bar, its employees, other than the Chief Trial Counsel, or a member of the Board of Trustees; or
ii. An attorney member of any State Bar committee or commission; or
(2) To avoid the appearance of any impropriety, when it appears that the attorney who is the subject of the inquiry or complaint or other matter will not receive fair
treatment

State Bar Rule of Procedure 2201

The long gestation of this rather small case has been explained as result of the slow operation of the Special Counsel process. Suspicion is inevitable that the timing has something to do with the Girardi scandal. But the caption on the Dunn matter bears an OCTC case number from 2017, indicating the investigation was probably opened soon after Dunn’s civil action was dismissed. This predates the eruption of the Girardi scandal in 2020. The Special Deputy Trial Counsel assigned to the matter are independent lawyers with impeccable reputations for integrity. The notice of discipline charges is not detailed, even by the notice pleading standard in State Bar Court, and precisely tracks the October 2014 MTO report, alleging three counts of moral turpitude in violation of Business and Professions Code section 6106, based on the alleged misrepresentations about opposition to AB 852 and the funds to be used for the Mongolia trip. None of this has any direct bearing on Dunn’s relationship with Girardi. Moreover, the narrow charging probably means that this proceeding is unlikely to provide any information on the burning question: did Girardi exercise undue influence on the State Bar to avoid scrutiny?

We may never know the answer to that question.

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.

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?

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.