Chief Trial Counsel Jayne Kim

Perhaps no government agency in California has been as studied as often as the State Bar of California.  Many of those studies gather dust on the bookshelves of the State Bar library, such as the study conducted by the eminent John Berry and the ABA in 2000 that recommended exclusive control of the discipline process by the Supreme Court.

A few of these innumerable studies have led to substantial and meaningful change.  One such study was conducted by the Disciplinary Evaluation Commission (DEC) an all-star panel appointed by Judge Margaret Morrow when she was President of the State Bar in 1993.  Headed by Judge Richard Alarcon, DEC’s charge was to evaluate the effectiveness and efficiency of the disciplinary reforms designed by Prof. Robert Fellmeth and enacted by legislature in the late 1980’s.

Many substantial changes were recommended, including:  a five year rule of limitation, permanent disbarment, and the availability of a nolo contendere plea in State Bar disciplinary proceedings, now codified as Bus. & Prof. Code section 6085.5:

There are three kinds of pleas to the allegations of a notice of disciplinary charges or other pleading which initiates a disciplinary proceeding against a member:(a) Admission of culpability. (b) Denial of culpability. (c) Nolo contendere, subject to the approval of the State Bar Court. The court shall ascertain whether the member completely understands that a plea of nolo contendere shall be considered the same as an admission of culpability and that, upon a plea of nolo contendere, the court shall find the member culpable. The legal effect of such a plea shall be the same as that of an admission of culpability for all purposes, except that the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, or the factual basis for, the pleas, may not be used against the member as an admission in any civil suit based upon or growing out of the act upon which the disciplinary proceeding is based.

(see also State Bar Rule of Procedure 5.43.)

One rationale for the nolo plea was the frequent filing of State Bar complaints by legal malpractice litigants, often in the misguided notion that it will somehow leverage a settlement on favorable terms.  The State Bar has long been aware that its discipline process was subject to this kind of abuse and the Rules of Procedure allow a State Bar Court judge to abate a disciplinary proceeding while related proceedings are pending (State Bar Rule of Procedure 5.50.)  Abatement slows down the discipline process and we were concerned with undue delay in the discipline process even 20 years ago.   DEC wanted to increase the settlement rate in State Bar Court.

The nolo plea is really a rule of evidence;  it removes the use of the necessary admissions to facts and culpability as a shortcut in the legal malpractice case, to encourage settlement by removing that bottleneck while allowing the full and necessary effect of the discipline settlement in every other area.

Nolo pleas were used from 1996 through circa 2011 on a regular basis, stipulated to and approved by the State Bar Court, although neither the statute or rule requires the approval of the Office of Chief Trial Counsel.  Sometimes they were used in cases where there was no parallel civil case. No question was raised as to whether the nolo plea was somehow incompatible with public protection.

That changed when Jayne Kim became Chief Trial Counsel.   Discipline defense counsel began to be told that it was “office policy” not to agree to a nolo plea.   This coincided with the governance crisis prompted by the Legislature’s questioning of the State Bar’s public protection zeal (see Bus. & Prof. Code section 6001.1, , effective January 1, 2012, providing that the “protection of the public shall be paramount” cf. Bus. & Prof. Code section 6031, Board may aid in the “advancement of  the interests of the members of the bar.”)

Noted discipline defense lawyer Susan Margolis wrote to the Chair of the RADO Committee in February 2014 raising concerns about the Office of Chief Trial Counsel’s intractability on nolo pleas.  In a statement to the Los Angeles Daily Journal, the Chief Trial Counsel stated her rationale for refusing to go nolo:

“The State Bar has an interest in making sure attorneys who commit misconduct take responsibility for their actions. The law does not require the State Bar to enter into plea negotiations with a respondent who wishes to enter a no contest plea.”

The first statement is true.  But is simply states the rationale for having a system of discipline.  The respondent still enters into a detailed stipulation of facts and legal conclusions, including the rules and statutes violated. There is still a discussion of mitigating and circumstances.  The record is made and sent to the California Supreme Court (in most cases) and the discipline is public (in most cases.)  The respondent professional life bears that black mark forever and the public’s right to know, as interpreted by the State Bar, means it lives in our collective memory (i.e. the internet) forever.

The second statement is misleading.  There is a strong public policy that demands that both sides attempt to settle a State Bar matter if possible (see Rules of Practice 1230 et seq.: settlement conference procedures; Rule of Procedure 5.30: Early Neutral Evaluation Conference; Rule of Procedure 5.57, stipulations to disposition.) A settlement conference occurs in almost every case; every practitioner in State Bar Court knows that the Court wants you to settle.   The statute says that the nolo plea exists but must be approved by State Bar Court.  There is apparently no barrier to a respondent filing a motion to change his plea to nolo contendere.  As a practical matter, that would amount to a unilaterally concession on culpability that would end bargaining, not encourage it.

The legal effect of the nolo plea is that the legal malpractice plaintiff is deprived a shortcut to proving their case.  But it has another effect, depending on the defendant’s insurance coverage.  Some insurers will deny coverage for defense expenses if the attorney stipulates to discipline and admits to facts that might be used to establish liability.  I have represented attorneys who were anxious to settle the discipline case but couldn’t because they would have to pay for their defense in the civil malpractice case.

The psychological effect may be to offer a respondent a face-saving gesture that makes the bitter medicine more palatable.  No one is going to be mislead by a nolo plea in a discipline matter, just as no one is mislead by one in a criminal case.

Extracting the last full measure of pain from the disciplinary process doesn’t necessarily advance public protection.

Use of the nolo plea can allow the settlement of cases that otherwise would not settle, and “achieve the speedier dispatch of litigation” in State Bar Court (see People v. West (1970) 3 Cal. 3d 395), especially where there is a parallel legal malpractice case.  That would advance public protection but might be incompatible with an image of the Office of Chief Trial Counsel as Tough Prosecutors.

Extending even the appearance of a concession to respondents is politically incorrect in the post-Governance State Bar.  Even when it expedites the process, which is the current Holy Grail of the discipline system.  Even when it prevents a substantial injustice to a lawyer with a parallel civil malpractice case.