Extraordinary enough when the California Supreme Court returns a discipline case to the State Bar of California for further consideration. Returning 24 cases at the same time qualifies as a Richter-scale event in the dank world of attorney discipline. That happened on June 21.

Just as the implications of that act were being fully absorbed, something even more extraordinary happened, something that seems downright strange. The Office of Chief Trial Counsel filed a motion on July 3 asking the California Supreme Court to return another 24 cases for further consideration.

Most everyone assumed that the Supreme Court’s action meant that it found the recommended discipline in the first set of e 24 cases to be too lenient, including the State Bar itself.   All of the cases were stipulated recommendations, reached during or shortly after the Chief Trial Counsel’s backlog reduction project.  But the Supreme Court’s order itself only asked that the recommendations be reviewed “in light of the applicable attorney discipline standards.”  This terse direction did not even specifically reference the written guidelines cited in the Brown and the Silverton cases mentioned in the order, the Standards for Attorney Sanctions for Professional Misconduct, found at Title IV of the Rules of Procedure of the State Bar.  A review of all 24 stipulations sent back by the Court disclosed many instances where the analysis of the recommended discipline did not address one or more apparently relevant Standards in any detail and sometimes not at all.   What had appeared to be some significant tarnish on the Chief Trial Counsel’s elimination of the both the investigation and prosecution backlog began to look less and less like the “firesale” that everyone promised that backlog reduction would not be.

Maybe this really wasn’t the end of the world as we know it.   After all, the Supreme Court has done something similar when it sent back 30 resignation matters in February 2010.  It could certainly be expected that they would be looking closely at the stipulated decisions coming from the State Bar Court during the pendency of the backlog reduction program and the length of time that it was taking the Court to evaluate recommendations must have been apparent to the discipline prosecutors.   So the Supreme Court’s action may not portend anything more than the necessity of tweaking the stipulation process so that the analysis using the Standards (among other “standards” including applicable case law) more precisely expresses the rationale for the result.   Maybe the boss wasn’t really chewing  them out for being a bunch of softies.

In normal times, cooler heads might have prevailed.   But there are no normal times at the State Bar of California.   On July 3, 2012, the Chief Trial Counsel, represented by its Office of General Counsel, filed a motion asking the Supreme Court to return a different set of 24 cases to the State Bar Court.  This motion, unsupported by any evidence, merely states that the Chief Trial Counsel has identified these case as possibly deviating from “the applicable standard” and asks that the Supreme Court return them to ensure consistency.  And little else.

The Supreme Court, as everyone acknowledges, has the ultimate say in discipline matters.  No one doubts that the Supreme Court can return a recommendation for further consideration and can even reject a discipline recommendation on its own motion. The Chief Trial Counsel stands in a different position. In each of the stipulated matters that it now wants to claw black from Mt. Olympus, the disposition had been bargained for and agreed to by the Office of Chief Trial Counsel and approved by a hearing judge of the State Bar Court as provided by the State Bar’s Rules of Procedure. In every case, the Respondent attorney made admissions of fact and agreed to conclusions of law that remain binding on them, and the State Bar as well. The risk that the stipulated recommendation would ultimately be rejected by the Court was known and was known to be small, at least until June 21. Now no Respondent in the discipline system can be completely sure that the discipline prosecutors will hold to the deal that they make.

There is no rule that authorizes the Chief Trial Counsel to file a motion asking the Supreme Court to return these cases. The California Rules of Court authorize the Chief Trial Counsel to seek review in individual discipline matters with a showing that grounds exist under Cal. Rule Ct. 9.16 such as:  review being necessary to settle important questions of law, that the State Bar Court has acted without or in excess of jurisdiction; that the decision is not supported by the weight of the evidence; or that the recommended discipline is not appropriate in light of the record as a whole. There is no discussion of any of these factors in the motion. The only authority cited is the Supreme Court’s own authority, not any authority conferred upon the Office of Chief Trial Counsel by rule or statute. And the only “evidence” is the Chief Trial Counsel’s own review of every discipline stipulation entered into in the last few months. Curiously, she is identified as the client being represented by the State Bar’s Office of General Counsel in this motion, not the State Bar itself, as is customary.

Why would the Chief Trial Counsel file this motion? An obvious reason would be to get out in front of an expected second wave of embarrassing returns from the Supreme Court. But there is a more ambitious agenda at work, as indicated by the most recent status report filed in anticipation of the Board of Trustees meeting:

The remand order appears to be a message to everyone in the discipline system (the State Bar Court, OCTC and Respondents/Respondent’s Counsel) that the Supreme Court expects more from the State Bar, greater adherence to the Standards, a more thoughtful analysis regarding the appropriate level of discipline and, perhaps, increased discipline of unethical attorneys. The Supreme Court’s remand order is also consistent with what seems to be a renewed level of engagement by the Court in discipline-related matters., OCTC believes it has identified certain common threads in the remanded stipulations. As examples, some stipulations may have contained too little discussion or recognition of the Standards, an insufficient explanation or justification for deviating from the Standards, or reliance upon pre-Silverton case law that supported a recommended level of discipline which – these days – may be considered inadequate by the Supreme Court…..

It’s as if we were decoding a message from the Sybil. Asking the Supreme Court to return another set of discipline cases is one way to fill in the lacunae in the original communication, fill it in with content of the State Bar’s choosing – including the wish that the inadequate “pre-Silverton” case law would just go away. The State Bar has read the tea leaves as it wants and seeks confirmation that it understands the message, even if that means stepping on the necks of a couple of dozen respondents to do it.   The audacity of the motion lies as much in its ambition as its lack of scruples.

While the citation to Silverton citation in the Court’s original order is bound to inflame the idea that Silverton was a watershed event, that it belied by the citation to Brown and it is really Brown that merits attention. That case involved an attorney who was convicted of failing to pay employment taxes. The State Bar Court recommended a public reproval; the Supreme Court took the case on its own motion and imposed sixty days actual suspension. While the Court emphasized the importance of the Standards, saying they should be followed “whenever possible”, it ultimately looked to its own precedent in discipline involving tax convictions for the answer, after noting the range provided in the Standards was so broad as to provide little practical guidance.