Another Brick in the Wall

On the agenda for the Regulation, Admissions and Discipline Oversight Committee (RAD) of the Board of Trustees of the State Bar of California is the Chief Trial Counsel’s proposal to change Rule 5.41 of the State Bar Rules of Procedure.  That rule governs the charging document that initiates a disciplinary proceeding in State Bar Court, the notice of discipline charges (NDC).   The proposed change would make it clear that  “notice pleading” is the standard in State Bar Court by requiring facts “in ordinary and concise language” without requiring “technical  averments or … allegations of  matters not essential to be proved.”

On the face, this seems innocuous enough.  But then you read the rationale for the rule change and you start to understand.

First,  the modification doesn’t change the applicable law in any way, a fact acknowledged by the Chief.   Applicable Supreme Court and Review Department precedent  require the discipline prosecutor to provide a level of detail necessary to prepare a defense, consistent with due process.  But those same cases, especially Baker v. State Bar discuss another important purpose served by a specific pleading

 While petitioner here does not complain of any due process violation in lack of notice, this specificity is also essential to meaningful review of the recommendation of the State Bar Court.

Baker v. State Bar (1989) 49 Cal.3d 804 (emphasis added).

The Supreme Court has told us that more than the minimum required by due process is essential.  There is no acknowledgment or discussion of this important purpose in the memorandum supporting the rule change.   It’s as if this inconvenient part of Baker just faded away.

Second, the Chief Trial Counsel, in her selective review of the history of  disciplinary pleading,  ignores the seminal event that put her office on the path to its current pleading practices.   I know it well because I was there at the time and participated in the office’s response to it.   That event is the Review Department decision In the Matter of Varakin (Review Dept.  1994)  3 Cal. State Bar Ct. Rptr. 179.   Not only is Varakin ignored but the memorandum contains this misleading statement:

Since and in response to these opinions, OCTC has overcompensated in its factual allegations in its NDCs. Although Maltaman, Guzetta, and Glasser involved criticisms of  individual charging documents, not an indictment of OCTC’s broader charging practices, OCTC responded to these cases by informally adopting a custom and practice of  pleading virtually every fact that it intended to present at trial, including those not  material to proving the elements of the charged offense.

Misleading in two ways.  First, because it was Varakin that prompted the change in pleading practices, not those earlier cases, and second, because Varakin was very much an indictment of OCTC’s broader charging practices.  An extended excerpt from Varakin shows the extent of the deception:

The State Bar still appears to be following its historic pleading practice of reciting all of the factual allegations separately from a catch-all charging paragraph which gives no explanation for the citation of any particular statute or rule allegedly violated. No justification has been offered for the continuation of this practice which was severely criticized several years ago in two Supreme Court opinions—Maltaman v. State Bar (1987) 43 Cal.3d 924, 931 and Guzzetta v. State Bar (1987) 43 Cal.3d 962, 968—and criticized again by the Supreme Court two years later in Baker v. State Bar (1989) 49 Cal.3d 804, 816.  Although the opinions in Maltaman and Guzzetta are best known for their criticism of the inadequacy of the volunteer referees’ written decisions, in both Maltaman and Guzzetta the Supreme Court specified that the charges were just as problematic as the volunteer referees’ conclusory findings, noting that, “Not only does this failure make the work of this court more difficult …, but it also brings into question the adequacy of the notice given to an attorney of the basis for the disciplinary charges.” (Guzzetta v. State Bar, supra, 43 Cal.3d at p. 968, fn. 1 (citations omitted); accord, Maltaman v. State Bar, supra, 43 Cal.3d at p. 931, fn. 1.)  In Baker v. State Bar, supra, the Supreme Court again pointed to the vexing problem created when the State Bar did not identify “with specificity both the rule or statutory provision that underlies each charge and the manner in which the conduct allegedly violated that rule or statutory provision.” (49 Cal.3d at p. 816 (emphasis added).) Again in In the Matter of Glasser (Review Dept.1990) 1 Cal. State Bar Ct.Rptr. 163, 172 the State Bar was reminded of the three prior Supreme Court admonitions. This review department then noted “It is not only incumbent upon the Office of Trial Counsel to determine which specific conduct of the respondent is at issue, but to articulate the nature of the conduct with particularity in the notice to show cause, correlating the alleged misconduct with the rule or statute allegedly violated thereby.” (Ibid.; emphasis added.) It is disturbing that the same pleading problems persist despite three Supreme Court opinions and a review department opinion on the subject in the past seven years.

Varakin  3 Cal. State Bar Ct. Rptr. 179 at 185 (emphasis added, except where noted.)

Then Chief Trial Counsel Judy Johnson’s  reaction to the acidic criticism in Varakin was to order a complete revision of its pleading practices, and the adoption of a new pleading format that married the factual allegations with the specific section or rule allegedly violated in a separate count.   I helped devise it.  It strains belief that the current Chief Trial Counsel could be unaware of Varakin and its significance.  Varakin, like Baker, is apparently too inconvenient for the narrative the Chief Trial Counsel wants to sell to RAD.

The pleading format that we devised, the one the Chief labels “exaggerated fact pleading”  has been used for almost 18 years without question.   Never has there been suggestion that it was leading to undue delays in the disciplinary process until now.

The Chief Trial Counsel makes the argument that less notice of permissible in the charging document because the respondent has, at the point charges are filed, been given notice three times, first, in the initial letter from the investigator, second, in the letter notifying the respondent that OCTC intends to file charges and finally, in the early neutral evaluation conference process, where OCTC is required by rule to provide the court with a draft NDC.

Those familiar with the process will be bemused.  Despite the language of Rule 2409,  OCTC doesn’t always contact a respondent in the investigation process before filing the NDC based on that investigation.  I have a case with a pending motion to dismiss a number of counts based on this failure.   The investigation letters that OCTC does send usually restate the complainant’s allegations in broad language, allegations that may or may not be related to the misconduct that is ultimately charged.  The notice of intent letter usually contains a recitation of citations to statutes and rules allegedly violated with the lawyerly caveat “including but not limited to”.   Often one of the purposes of the ENEC is to “smoke out” the factual basis for charging a certain rule or section because it just isn’t clear what OCTC’s theory of culpability is.   Despite the rule requiring a draft NDC or summary of facts supporting each violation, it isn’t always done.   And if the charging document for discussion at the ENEC is now going to be the “short form” NDC, the notice problem isn’t cured.

The articulated aim is to reduce the pleading standard to barest minimum level of notice to that “consistent with criminal procedure”.   Those who have read the charging documents typical in criminal cases will know just how minimal that can be.   This is apparently OK because “a member’s duties and oaths vis a vis the Rules of Professional Conduct and the State Bar Act are also presumed” just like every person is presumed to know the criminal law.   In other words, we don’t have to tell you what you did wrong; you already know.

Brick by brick, procedural protections for  respondents in the discipline system are being dismantled.   The protections of the Evidence Code in State Bar proceedings are no longer available;  the right to discovery has been cut back.   Now the right to adequate notice, a fundamental part of due process, is threatened by this proposal, a proposal freighted with deception.

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