Mark of Cain Episode 3: The Empire Strikes Back!

At the conclusion of Episode 2 (Mark of Cain, Continued), the State Bar’s Chief Trial Counsel had asked the Regulation, Admissions and Discipline Oversight Committee (RADO) to approve an expansion of the “Consumer Alerts” policy to place a prominent badge proclaiming the lawyer to be a threat on the lawyer’s web page on the State Bar website when any notice of discipline charges is filed alleging any misconduct.  As Draconian as that policy clearly would be, the most alarming part might have been that the Chief asked for the sweeping policy change without asking RADO to put the proposal out for public comment.

In a State Bar rocked by allegations that it operates in something far less than a transparent matter, the kindling was set for a firestorm of critical e-mails to Chair and members of RADO, once discipline defense counsel spread the word through email and listservs.  It was conceded at the RADO meeting in May 913 that public comment was necessary and the Office of Chief Trial Counsel indicated that a revised proposal would be submitted in July 2013.

And so it has.  You can read all 14 pages of its dense prose here.

Transparency is evidently not the same as clarity because it took a few passes to figure out the proposed new policy.  It boils down to this:  you will badged with the Mark of Cain if you are accused of misconduct in at least 15 “cases” in State Bar Court, whether by notice of discipline charges or 6007(c) petition, or if the State Bar files a petition in Superior Court to assume jurisdiction over your practice.  15 “cases” is not defined but in State Bar usage is usually means 15 separate investigation case numbers, usually representing 15 complaints.  If you found culpable of any misconduct in State Bar Court, the badge stays put, even if it far less than what was alleged.

This makes the new proposal three things:  (1) consistent with the previously adopted policy making 15 or more “loan modification” cases a qualification for the threat badge; (2) still unfair in penalizing lawyers who might be exonerated of most charges or the most serious charges at trial; and (3) a massive retreat from the previous proposal’s blanket assumption that any conduct sufficient to warrant discipline creates a threat to the public.

The function of public comment worked here as it is supposed to work.  It helped to prevent over-reaching by the government by forcing it to go back to drawing board and articulate some rational basis for it.  The irony is that it may have worked better this time because there was no call for public comment.  Lawyers that I spoke to regarding the original proposal were outraged by the proposal but even more outraged that they were asked to comment on it.

This when matters affecting the discipline system that are put out for public comment often generate only a trickle of public comment.  Without a doubt this current proposal will less interest and less public comment.  Putting any proposal out in July is a good recipe for an indifferent reaction and many local bar associations are operating a half speed during vacation season.

And this looks like the proposal that should have been offered in the first place and might have if comment had been solicited from the discipline defense bar prior to the original proposal being floated and promptly sunk.  But that doesn’t happen anymore.

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