The State Bar of California announced this week that it had initiated a State Bar Investigation into John Eastman, former Champman University professor and a principal Trump legal advisor following the 2020 Presidential Election. The Chief Trial Counsel invoked his power under Business and Professions Code section 6086.1(b)(2) and State Bar Rule of Procedure 2302(d)(1) to disclose the existence of the otherwise confidential information “when warranted for the protection of the public.” The announcement followed the closing of a number of complaints made by individuals that raised questions about whether the State Bar of California was going to take a serious look at allegations that Eastman violated his duties as a California lawyer in advising Trump on ways to overturn the 2020 Presidential Election (see The SBI Mystery.) Coincidentally (?) the announcement occurred just a day before a new court filing by the House Select Committee that Eastman sued in an attempt to avoid providing documents Eastman contends are subject to lawyer-client privilege (https://www.documentcloud.org/documents/21321582-house-select-committee-filing.) That filing revealed email exchanges between Eastman and Vice President Pence’s counsel Gregory Jacob that, in the words of the Committee’s counsel, show Eastman “used his Chapman University email account to email Greg Jacob… on January 5 and 6 urging the Vice President to take illegal action and refuse to count electoral votes.” House Select Committee brief at page 16. The House brief refers to State Bar’s press release and investigation in footnote 8 at pages 4-5.

The Chief Trial Counsel’s decision to invoke a little used exception to confidentiality rules to publicize the Eastman investigation was bound to provoke controversy, as the spirited conversation that ensued on the APRL listserve demonstrated. Not least because the State Bar has invoked those same confidential rules in resisting efforts to learn more about the State Bar’s lack of action against Tom Girardi (see The Secret Girardi Investigation.) Is the Eastman announcement a cynical attempt to play politics by throwing red meat to the anti-Trump mob? Or is it an attempt to address well-founded concerns about State Bar accountability to address lawyer conduct that posed a serious threat to our democracy? Reasonable (and unreasonable) minds can differ.

But there can be little disagreement that the Eastman investigation poses a serious challenge to the Office of Chief Trial Counsel. While it enforces ethical rules, it operates more as a government consumer protection agency than as the ethics police, a fact not well understood by the general public and even a large segment of the legal profession. The political context of the Eastman investigation is not familiar ground; this is far removed from the failures to perform, failures to communicate, client trust account misconduct and dishonesty that are basis of most of discipline. Tools exist, relatively prosaic ones such as California Rule of Professional Conduct 1.2.1, which provides that a California lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” or more exotic ones such as California Business & Professions Code section 6106.1, a McCarthy-era statute that says “Advocating the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, constitutes a cause for disbarment or suspension.” The Rule of Professional Conduct is seldom enforced and the Business and Professions Code section has never been enforced, as far as I can tell.

In matters like Eastman, the State Bar might be expected to act only after a civil or criminal court has made findings that clears a path to discipline. But it is unknown if this will happen and now the State Bar raised expectations that it will do something about Eastman conduct. Doing something means filing some set of charges in State Bar Court where it might lose, given its high burden of proof, clear and convincing evidence. The Chief Trial Counsel move to publicize the Eastman investigation was a gutsy one. It would have been a lot safer to allow the investigation to proceed in secret.

* Apologies to Oscar Hammerstein.