New Discipline Standards Appear, Startling Nearly Everybody

On May 7, the State Bar’s Regulation and Discipline Committee (RAND) approved the first substantive revision to the Standards for Attorney Sanctions for Professional Misconduct (SASPM, otherwise known as Title IV of the State Bar Rules of Procedure) since 1986. A day later, the full Board of Trustees voted to approve the new SASPM, ushering in a new era of greater public protection. Or not.

“Huh?”, you might say.  SASPM?  What the hell are you talking about?

If you did say “huh”, you are not alone, for knowledge of the SASPM is largely confined to the practitioners of attorney discipline, prosecution and defense, and the Courts in which they appear, State Bar Court and the California Supreme Court.

Outsiders might encounter the SASPM through the occasional Supreme Court opinion (last discussed in In Re Silverton (2005) 36 Cal.4th 81) or in most Review Dept. opinions, but there is scant evidence that anyone outside really cares.  Literally, scant evidence.   Despite being the first substantive revision since 1986, it garnered only a handful of public comments, even with two public comment periods.  Not even lawyers within whose wheelhouse the Standards reside worked up much interest in saying anything about the new and presumably improved SASPM.  Only the Chief Trial Counsel expressed support for the new SASPM.

The project got off to a grandiose start with a press release by the State Bar in on January 29, 2014, and two months later it announced that the initial meeting of the Discipline Standards Task Force would be on May 12, 2014.  The initial meeting featured opening remarks by the then Executive Director, who reminded everyone about the open meeting laws. The then Assistant Executive Director (now acting Executive Director) also spoke and provided the Task Force members with a broad overview of the purposes of attorney discipline, including a discussion of a law review article by the late Prof. Fred Zacarias entitled, forthrightly, The Purposes of Discipline.  Among the ideas advanced in the article is that deterrence is a permissible purpose of professional discipline and that deterrence of other lawyers’ misconduct would justify a harsher level of discipline than would otherwise by the traditional analysis of discipline as an individualized inquiry into the fitness of that particular practitioner to practice law. (See Zacharias, at pages 65-66.)

Dr. Stangelove reminded us that deterrence only works if the deterrent is known to the actor.   While lawyers do read the discipline decisions, almost no one outside the arcane little world of discipline is aware of the SASPM.  Even if you buy the deterrence theory, this is not the vehicle for it.

Dr Strangelove

The bigger problem is that emphasizing deterrence would be departure from California Supreme Court’s long standing approach to discipline as an inquiry into the fitness of the practitioner. As succinctly stated in Read v. State Bar (1991) 53 Cal.3d 394, 422 : “In arriving at an appropriate discipline, we balance all relevant factors, including mitigating circumstances, on a case-by-case basis.”

At that first meeting, the Discipline Standards Task Force declined to embrace this path to punishment, correctly concluding that it was circumscribed by the Supreme Court’s case law and, to a much lesser degree, by the statutory mandates of the Business and Profession Code.  But the idea that the SASPM serves a deterrent function survived in the Task Force’s decision that there should be a separate Standard for each type of violation.

Thus, the Task Force adopted new Standard 2.5, which applies to violations of Rule of Professional Conduct 3-310. (“Avoiding the Representation of Adverse Interests”). Presently, such violations are governed by the “catch all” provisions of soon to be former Standard 2.15, “Violation of Rules In General”, which unhelpfully provides a range of discipline from reproval to three years of actual suspension. New Standard 2.5 very helpfully specifies that a violation of Rule 3-310(C) or (E) will result in actual suspension if informed written consent is not obtained and there is actual harm to the client, and, in a successive representation conflict, when the attorney fails to protect material confidential information.

The problem with Standard 2.5 is twofold.  First, as pointed out by Task Force member Steven Lewis, there is no meaningful case law supporting such a level of discipline for a “stand alone” violation of the rule.  Second, and this is related to the first, violations of Rule 3-310 are seldom prosecuted by the State Bar.  Why?  These violations are typically addressed through motions to disqualify counsel.  The standards for a disqualification motion are different than for a discipline proceeding.  And this type of misconduct is often committed by larger law firms who are not typically targeted as “public protection” problems.

High profile disqualification motions, some involving large law firms, appear to be increasing and this was perceived by the Task Force Chair as a problem that should be addressed.  As well it may be, but it has not, heretofore, been a problem that the California Supreme Court or the State Bar has recognized as something to be addressed by the discipline system.  So deterrence as a public policy choice creeps in, subtly or perhaps not subtly, resulting in a Standard that seems a lot more like a statement of what we want to the law to be rather than a guideline telling us what the law is.  Only the Supeme Court, and Review Dept., under the guidance of the Supreme Court, can make law or set policy in this area.

Not everyone is offended by this.  The Chief Trial Counsel’s only problem with Standard 2.5 is that it did not go far enough, leaving out the notice requirements of Rule 3-310(B) and everyone’s favorite trap for the unwary, Rule 3-310(F).  The Office of Chief Trial Counsel has long sought to place the SASPM on the same lofty plateau as other substantive discipline law, in the name of consistency and, for goodness’ sake, just to make the whole process of figuring out the appropriate discipline simple. Why wade through all that nasty old case law when SASPM has the answer?

No new era of public protection will be ushered in by the new and improved SASPM. Even the press announcement of their approval carefully described them as guidelines. Guidelines do not a revolution make, but it will be interesting to see if the Task Force’s foray into discipline policymaking results in more standalone prosecutions of Rule 3-310.  If someone runs a flag up the flagpole, are we not supposed to salute it?  And it will be interesting to see, if and when the California Supreme Court gets its shot at Standard 2.5, whether it decries it as “not faithful” to its teachings, as it did with old Standard 2.2(a) in Edwards v. State Bar (1990) 52 Cal.3d 28.

In the meantime, those of us in the arcane world of attorney discipline can ponder the place SASPM holds in our universe.  Everyone else can relax.

 

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