The SBI Mystery

There are State Bar investigations. And there are State Bar Investigations. A capital letter can make a big difference. And so it does in this case.

Complainants Are Special

Most State Bar investigations (small “i”) result from a complaint that the State Bar of California receives from a person who is referred to as the “complainant” or the “complaining witness.” That status comes within certain rights. State Bar Rule of Procedure 2403 describes them:

Rule 2403. COMPLAINT
The Complainant is entitled to receive relevant information pursuant to the provisions of the State Bar Act or the Rules of Procedure of the State Bar of California. In matters where communications from more than one person concern the same or substantially the same underlying conduct of the attorney, there may be more than one complainant. The complainant may be, but is not limited to:
(a) a current or former client;
(b) one complaining on behalf of a current or former client;
(c) one owed or was owed a fiduciary duty and an alleged breach of the fiduciary duty is or should be a subject of the investigation;
(d) member of the judiciary or legal professions who alleged misconduct by the attorney which is or should be the subject of an investigation;
(e) a person who has significant new information about an alleged ethical violation committed by the attorney affecting the professions, the administration of justice, or the public.
Eff. January 1, 1996. Revised: January 25, 2019. Source: New.

As the Rule indicates, the State Bar Act requires that a complainant receive relevant information. Business and Professions Code section 6092.5 provides that the State Bar must “[p]romptly notify the complainant of the disposition of each matter.” It also provides that the State Bar must [p]rovide information to prospective complainants regarding the nature and procedures of the disciplinary system, the criteria for prosecution of disciplinary complaints, the client security fund, and fee arbitration procedures.” Emphasis added. Business and Professions Code section 6093.5 further provides that “Upon request, the State Bar shall notify a complainant of the status of his or her complaint and shall provide him or her with a written summary of any response by the attorney to his or her complaint if the response was the basis for dismissal of the complaint. A complainant shall be notified in writing of the disposition of his or her complaint, and of the reasons for the disposition.” Emphasis added.

Sections 6092.5 and 6093.5 were added in 1986, part of the great wave of reform spearheaded by State Senator Robert Presley and largely designed by Robert Fellmeth. This reform followed in the wake of the extensive negative publicity concerning the state of the discipline system that resulted from a series of newspaper stories in the San Francisco Chronicle. Among other things, those stories described a backlog of about 4400 discipline complaints that had been languishing, some for years, memorably captured by the description of “the TNT Room” so-called because it was stuffed so full of files that it was about to explode.

Another significant reform was creating a statutory right to have investigation closing decisions reviewed by a seven-member panel known as the Complainants’ Grievance Panel (CGP), composed of four attorneys and three non-attorneys. My first job at the State Bar was serving as a staff attorney for the CGP. The CGP statute “sunsetted” in 2000, but the “second look” function continues to be performed by the Office of General Counsel. The intent of the legislation was to impose a degree of accountability on the State Bar’s Office of Chief Trial Counsel (OCTC) in the exercise of its broad discretion to pick and choose what cases to prosecute. In more concrete terms, to prevent OCTC from dealing with the backlog by just dumping cases.

The status of complainant also comes with certain costs, most prominent being that the complainant waives the attorney-client privilege and any other applicable privilege to the extent necessary to investigate the complaint (Rule of Procedure 2406.)

State Bar Investigations (SBI) Are Different

But within the set of State Bar investigations, there is a subset called State Bar Investigations (SBI). They are specifically authorized by State Bar Rule of Procedure 2402:

Rule 2402. INITIATION OF INQUIRY OR INVESTIGATION
The State Bar may open an inquiry or investigation on its own accord or upon receipt of a communication concerning the conduct of an attorney of the State Bar.
Eff. January 1, 1996. Revised: January 25, 2019.

An SBI is not subject to the duties that come with investigations triggered by a complaint. They are also not subject to the five-year Rule of limitation set forth in State Bar Rule of Procedure 5.21. SBIs are separated tallied in the statistics contained in the State Bar’s Annual Discipline Report. In 2020:

The numbers of SBIs, like many other types of discipline cases, have declined over the last few years.

An SBI is often opened in response to information the State Bar receives through public sources, such as media accounts or judicial decisions. Judges who complain to the State Bar are sometimes given the option not to choose the status of “complainant” but have their complaint closed with the option of it being reincarnated as an SBI. Cases involving allegations or findings of prosecutor misconduct are often opened as SBIs (see 2020 Annual Discipline Report, footnote 33 at page SR-7.)

SBIs, like all State Bar investigations, are confidential. But when an SBI is closed, there is no reporting to anyone (that we know of) as to the closure of the matter and reasons for the disposition. SBIs are purely within the zone of OCTC’s prosecutorial discretion. They are born, live and die within that zone, unless the decision is taken to pursue formal discipline charges. Only in that event is there accountability to the wider world.

Much ink has been spilled on the disconnect between court findings of prosecutorial misconduct and ultimate State Bar discipline. I won’t add to it but to ask the question: does the fact the disciplinary process typically addresses prosecution misconduct in the accountability-free SBI zone contribute to that disconnect?

The potential for abuse of discretion arises when the State Bar closes a complaint and then opens an SBI based on the same facts. I don’t know how often that happens but I know that it has happened. That action removes the “matter” from the accountability-rich zone of “complaint” to the murky realm of SBI. It is no longer subject to five-year limitation of Rule 5.21, the necessity of explaining the closing decision or the availability of “second look” review by the Office of General Counsel.

This has implications for recent complaints made against lawyers arising from activities connected with the 2020 Presidential election. Recently some complainants who had lodged complaints against such an attorney who had been the subject of extensive news coverage received a closing letter that told them their complaints were being closed because they did not claim to have “personal knowledge” of the conduct complained of or to represent any “party directly involved” with that conduct. This seems at odds with Rule 2403 which broadly defines complainant to exclude an explicit standing requirement and to include a “member of the judiciary or legal professions who alleged misconduct by the attorney which is or should be the subject of an investigation.” Is part of the reason these complaints were closed because an SBI exists, based on the same facts, opened in response to media coverage? If so, shouldn’t that be explained as a basis for closure? Shouldn’t the complainant and maybe the public at large know that the State Bar is looking into this conduct? Many people are looking to the discipline system to hold these lawyers accountable. The “secret investigation” of an SBI makes it possible that these concerns may never be addressed for reasons that we may never know.

Rule 2302 allows the Chief Trial Counsel to waive confidentiality after notice to the lawyer “for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality, including but not limited to the following circumstances: (A) An attorney has caused, or is likely to cause, harm to client(s), the public, or to the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. The following additional factors shall be considered in making this determination: (i) The maintenance of public confidence in the discipline system’s exercise of self-regulation” (emphasis added.) When the allegations include conduct intended to subvert our democratic system of government, it seems that the maintenance of public confidence requires disclosure that the State Bar is at least looking into it.

The problem of course is that if the State Bar announces that it is looking into it and does nothing, explanations will be demanded. SBIs are a convenient mechanism to examine “hot potato” allegations without accountability.

Maybe it is time to build some accountability into the SBI, perhaps through a CGP like panel charged with auditing SBIs and making those findings known to the public and legislature. As with prosecutorial misconduct, public confidence in the discipline system may require it.

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