The California Supreme Court has taken the unusual step of rejecting a recommendation from the State Bar Court and imposing its own discipline (disbarment) (In the Matter of Duane Tucker.)  The case has an eventful  history.  In October 2011 Tucker and the Office of Chief Trial Counsel (OCTC) stipulated to a six month actual suspension, despite Tucker’s two prior disciplines.  In June 2012, the Supreme Court remanded the case back to State Bar Court along with a number of other stipulated decisions.  The matter was tried.  After trial, the Hearing Judge recommended two years actual suspension in decision dated January 11, 2013.  Shortly after, Mr. Tucker submitted his resignation with charges pending.  On August 21, 2013, the Supreme Court rejected the resignation, rejected the two year actual suspension recommended by the State Bar Court and disbarred Mr. Tucker.

It’s bedrock law in California’s attorney discipline jurisprudence that the California Supreme Court has “reserved, primary and inherent, power” to discipline  a lawyer limited only by reasonable legislative action that does not materially impair it (Obrien v. Jones (2000) 23 Cal.4th 40, 48.)  The Legislature expressly recognized this power in Bus. & Prof. Code section 6100 (“Nothing in this article limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.”)  During and shortly after the overhaul of the State Bar discipline system in the late 1980’s, the Supreme Court seemed to step back from active involvement in the discipline system, especially after the “finality rules” were added the California Rules of Court in 1992, rules delegating certain powers to the newly created full time professional State Bar Court (Rule 9.10, et seq.)  The Supreme Court got out of the business of routinely writing decisions in attorney discipline proceedings and a few years later decided that they didn’t have to (In Re Rose On Discipline (2000) 22 Cal.4th 430.)

After the finality rules were adopted, Supreme Court decisions in disciplinary matters issued is spurts every five years or so: In the Matter of Morse (1995) 11 Cal.4th 184, In Re Brown (1995) 12 Cal.4th 205, Rose (supra), In Re Paguirigan (2001) 25 Cal.4th 1 and its companion case, In Re Lesansky (2001) 25 Cal.4th 11 and In the Matter of Silverton (2005) 36 Cal.4th 81.

Aside from these, the Supreme Court was almost entirely silent on discipline.  State Bar officials sought guidance on a number of issues, including recommendations from the Discipline Evaluation Committee issued in 1994 and were met with years of silence, or no response at all.  Even when the discipline system was shut down in June 1998 as a result of Governor Wilson’s veto the Supreme Court delayed acting for months, deferring to the Legislature, until finally riding the rescue with a special assessment at the end of 1998 (In re Attorney Discipline System (1998) 19 Cal.4th 582,)

Seemingly true to this loose schedule, the Supreme Court accepted a petition for review from the Office of Chief Trial in the Matter of Gary Grant in 2011.  That matter is still pending in the high court.  But the Supreme Court silence on discipline began to break earlier.  In the aftermath of the shutdown crisis, State Bar officials understood that they needed to move closer to the Supreme Court.  Proposals that might have been structured as State Bar Rules of Procedures in the 1990’s were instead re-cast as proposed California Rules of Court requiring Court approval.  This process accelerated in the post-Silverton era.  A new rule on resignation was adopted in 2007 requiring State Bar Court review, after the Supreme Court made its unhappiness with the the existing rule requiring Board action known.  In 2008, the Supreme Court disapproved such a proposal on permanent disbarment in a behind the scenes dialog with the State Bar.

In early 2010, the Supreme Court sent a shock to the discipline system by rejecting en masse approximately 30 resignations with charging pending.  Resignation with charges pending had played an important role in reducing the discipline system workload;  following this action, resignations were reduced to trickle, replaced by a previously unknown and more labor intensive mechanism, stipulation to disbarment.

A second shock ensued in 2012 when the Supreme Court returned 42 disciplinary stipulations “for further consideration in light of applicable discipline standards.”  Aside from taking some of the luster off new Chief Trial Counsel Jayne Kim’s reduction of the case backlog, this second shock dramatically increased the workload of the State Bar Court.  Historically about 15% of discipline cases were tried; now that has gone up to something over 30%. At the same time, the State Bar Court is reeling under the impact of rule changes enacted in 2011 that require discipline cases to be tried within 125 days of the filing of charges; the previously guideline was 8 months.  Presiding Judge Remke of the State Bar Court reported on the positive impact of these rule changes to the Regulation, Discipline and Admissions Oversight Committee (RADO) in July 2013 but warned that the decline in settlement rates threatens to reverse those gains.

Now the third shock of the Supreme Court’s action in Tucker, reportedly, a subject of much discussion at the regular meeting of State Bar Court judges.  Clearly, settlement rates are not going to increase any time soon;  moreover, the levels of discipline recommended after trial in State Bar Court will certainly go up as the latest message from the Supreme Court is taken to mean more than Mr. Tucker’s fate as a lawyer.

The discipline system is evolving into a system where many if not most cases will end up being tried.  It’s hard to see how the current constituted State Bar Court is going to keep up without a significant investment of resources, new judges and new staff.  But the California Supreme Court is the boss, even if the direction the boss wants to move in isn’t explicit.  Will the Legislature increase the dues assessment to pay for this direction? If not, perhaps the Supreme Court will utilize the power it acknowledged in Attorney Discipline System to pay for the discipline system it wants.  Now that’s being in charge.