Billy Joel sang that “only the good die young”, a sentiment some say Joel has been proving for decades. Not too long ago, it looked like we were witnessing yet another premature death: published Review Department decisions that count as precedent in State Bar Court. Coming up on two years since the last published decision (In the Matter of Allen, published in November 2010) 44 Review Department opinions had issued with not one deemed worthy of publication. This blog post was originally going to be titled “RIP Review Department Precedent: 1989-2010?”
On October 3, 2012, with the publication of In the Matter of Reiss, rumors of this youngster’s demise proved to be greatly exaggerated. The Review Department had found something that was worth giving the hearing judges, State Bar trial counsel, defense counsel and respondents, a topic worthy of setting in stone along the path.
On first reading, though, its not obvious what that guidance is. Reiss’s disbarment recommendation seems straightforward given the culpability findings. There is a helpful discussion in the footnote on page 20, that clarifies the circumstances under which a lack of prior discipline over many years of practice will have no mitigating effect. On the surface there is nothing especially groundbreaking here, legally or factually.
On deeper reflection, though, you realize that the fact that there is nothing groundbreaking here is exactly the point. The opinion’s written analysis begins by reaffirming the traditional “case by case” examination of all relevant factors, beginning with the Standards for Attorney Sanctions for Professional Misconduct (let’s just call them the Standards, capital “S”), whose guidance will be followed “whenever possible” (page 22). But it made it clear that it doesn’t end there; at the end of rather short trip the Court tells us that they reached their opinion “After carefully considering all relevant factors, the aggravation, the mitigation, and the guiding case law.” (Page 23.)
The one legal issue that they really addressed is contained in just a footnote on page 20. Significantly, it is an issue where case law is at odds with the Standards. Standard 1.2(e)(i) only provides that no prior discipline is mitigating if the conduct is “not deemed serious”, while Supreme Court case law has given attorneys mitigation on this ground in cases that are certainly serious, like misappropriation of client funds. The Review Department might have decided to go with the Standard on this issue, perhaps believing the idea that the Supreme Court’s action in sending 42 cases back to the State Bar was message that not to rely on “pre-Silverton case law.” Instead, the Court’s analysis found the common thread among that “pre-Silverton” case law and articulated a helpful rule of law (no mitigation for lack of discipline if conduct prolonged) that doesn’t slavishly follow the Standard, the Standard that is not true to the Supreme Court case law.
The message of Reiss is that precedent still counts in the discipline system. And maybe more importantly that the Review Department will exercise its power to make precedent to guide the disciplinary process where it deems appropriate. The Court did the same thing four years ago with its decision four years ago in In the Matter of Van Sickle (Review Dept. 2006) 4 State Bar Ct. Rptr. 980, 2006 WL 2465633 , at the height of the first Silverton-mania. The Supreme Court denied the Office of Chief Trial Counsel’s petition for review of that decision, which set out in depth why the Standards can’t be taken at face value.
Reiss is a disbarment recommendation, so an appeal by the discipline prosecutors seems unlikely, but these days, who knows? The Supreme Court, of course, could take the case up on their own motion if they really want to re-visit the issue of how we come to disciplinary recommendations. Or they can simply order Reiss depublished and leave us all completely confused. Will OCTC ask the Supreme Court to depublish Reiss? We will see.