Review Department Back in the Law Making Business

Not so long ago, it looked like the Review Department of the State Bar Court had gotten out of the law making business.  When the full-time professional State Bar Court was created in 1989, a new three judge panel was created as the State Bar Court’s appellate arm and given the power to issue written decisions that would serve as binding precedent in the Hearing Department, where discipline trials are conducted (current State Bar Rule of Procedure 5.159.)  The idea at that time was that to create a body of case law to supplement the existing (and sometimes confusing) Supreme Court case law on discipline.  The other purpose, less conspicuous at the time but readily apparent in hindsight, was to relieve the Supreme Court of its burden of discipline cases, which had become a significant percentage of its case load.

The first, second and third iterations of the Review Department (presided over by Lisa Pearlman, James Obrien, and Ronald Stovitz, respectively)  took its task to heart, producing four and 1/2  volumes of published precedential decisions between 1990 and 2007.  The pace of production slowed somewhat in the 21st century, and markedly after JoAnne Remke became presiding judge but after October 2010, it halted completely for a period of almost two years.  This gap, coinciding with the unprecedented turmoil at the State Bar: the governance struggle of 2011, the ascension of Jim Dunn as Executive Director, with de facto (if not de jure) authority over the discipline system, his subsequent purge of Chief Trial Counsel (now judge) James  Towery and the senior management of the Office of the Chief Trial Counsel, and the appointment of Dunn’s minion “zero tolerance” Jayne Kim as Chief Trial Counsel.

During this same time, discipline prosecutors, both subtly and overtly, advanced the idea that Review Department precedent didn’t mean much anymore.  In the wake of the Supreme Court’s decision In Re Silverton (2005) 36 Cal.4th 81, so the argument went, the only precedents that mattered were the Standards for Attorney Sanctions for Professional Conduct, written guidelines found in Title IV of the State Bar Rules of Procedure, the Supreme Court case law.

The Review Department was hardly inactive during this time period. It  produced many unpublished decisions, some dealing with weighty issues, such as In the Matter of Grant, which addressed the question of appropriate discipline following a felony conviction for possession of child pornography, a case subsequently accepted by the Supreme Court on review, and In the Matter of Eytan, which addressed the collateral estoppel effect of an appellate court sanction in the discipline process.  But none of these was deemed worthy of publication.

I wondered if the Review Department had exited the field completely.  As always, the mysterious force hovering behind the scenes was the California Supreme Court.   Was the lack of Review Department law-making at their direction, either explicit or implicit?  Because the Supreme Court and the State Bar, creatures of the judicial branch, aren’t subject to the transparency laws, the Brown Act and the Bagley-Keene Open Meeting Act, we don’t know what direction the high Court gives direction to its administrative arm.    State Bar staff often claim that they are just following the Supreme Court’s direction but when you ask them how that direction came to them, they fall silent.  We know that meetings occur but what is discussed is unknown to rest of us, who are reduced to reading tea leaves.  We will probably never know what role the Supreme Court played, if any.

The 23 month lacunae ended with the publication of In the Matter of Reiss, an opinion succinctly reaffirming well-established law how the Standards fit in the discipline analysis:

The purpose of attorney discipline is not to punish the attorney, but to protect the public,
the courts, and the legal profession. (Std. 1.3.) Ultimately, we balance all relevant factors,
including mitigating and aggravating circumstances, on a case-by-case basis to ensure that the
discipline imposed is consistent with its purpose. (In re Young (1989) 49 Cal.3d 257, 266.) We
begin our analysis with the standards and follow their guidelines whenever possible because they
promote uniformity. (In re Silverton (2005) 36 Cal.4th 81, 91-92.)

The most significant thing about Reiss is that the Review Department felt the necessity of re-stating this.

Reiss was followed by In the Matter of Swazi Taylor, an important decision interpreting the statute that forbids the collection of an advanced fee in loan modification case.  Taylor illustrates one of the problems with judge made law.  The Review Department, like all appellate courts, is limited to the record in front of it, the evidence and argument introduced by counsel.   Effective arguments that might have been made in the appeal were not made.  Moreover, the record in Taylor contains a significant mistake.  A key fact relied on by the Review Department in dismissing  Taylor’s claim of good faith was his knowledge of a 2009 State Bar FAQ that allegedly put him on notice that he could not divide his loan modification services in segments.  But the 2009 FAQ did not address that issue; it wasn’t amended until 2011 to address the “unbundling” of services.   Taylor is a flawed opinion; but it is the law.

Recently published opinions In the Matter of Lawrence and In the Matter of Song seem to confirm that the Review Department’s re-entry into the law making business.  Both cases address issues regarding the evaluation of mitigating evidence under the Standards.   Mr. Song argued that his testimony regarding  his emotional difficulties and ten’s years therapy to treat his inferiority complex resulting from stringent cultural expectations of him, and the testimony of his two therapists, was part of his “compelling” mitigation under Standard 2.2  that should justify something less than disbarment for intentionally misappropriating $112,293 from a client.   Mr. Lawrence, 81, presented evidence of his 60 year battle with tic douloureux and his recent craniotomy.  Under Standard 1.7(b), his fourth discipline should have resulted in disbarment, as urged by the Office of Chief Trial Counsel.  The Review Department found his evidence to be compelling mitigation that justified deviation from Standard 1.7(b), proving, perhaps, that not only is the quality of mercy not strained, but not incompatible with the Standards for Attorney Sanctions for Professional Misconduct.  No mercy for Mr. Song, however; the Court did not find that his emotional difficulties and claimed remorse predominated over his extremely serious misconduct.

The re-emergence of Review Department precedent adds an important element of stability to the California discipline system in a time of turmoil.  Perhaps its too much to refer to it as ‘adult supervision”; the Office of Chief Trial Counsel will always be the 800 gorilla of the discipline system but at least that highly politicized entity is not completely unrestrained as long as the Court is formulating rules that apply to more than one case.  Mistakes like the Taylor decision notwithstanding, the return of published Review Department decisions is a positive development to those of us who have still think that the purpose of the discipline system really is the protection of the public and the other purposes of  Standard 1.3, and not the punishment of “bad” attorneys.

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