Public Protection Zealotry: Is There a Limit?

No one expects this.

Lawyer disciplinary proceedings exist to protect the public. This value is enshrined in California Business and Professions Code section 6001.1:

Protection of the public, which includes support for greater access to, and inclusion in, the legal system, shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (Amended by Stats. 2018, Ch. 659, Sec. 3. (AB 3249) Effective January 1, 2019.)

Those functions must be conducted with due process:

The United States Supreme Court held in In re Ruffalo (1968) 390 U.S. 544, 550—551, 88 S.Ct. 1222, 20 L.Ed.2d 117, that where administrative proceedings contemplate the deprivation of a license to practice one’s profession they are adversary proceedings of a quasi-criminal nature and procedural due process must be afforded the licensee. Emslie v. State Bar, (1974) 11 Cal. 3d 210, 229.

Due process has been described as “flexible and calls for such procedural protections as the particular situation demands.” Conway v. State Bar (1989) 47 Cal. 3d 1107, 1113, citing Morrissey v. Brewer (1972) 408 U.S. 471, 481. The Conway court also cites Mathews v. Eldridge (1976) 424 U.S. 319 333 for the proposition that the “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'”

The public protection mission of the State Bar is resolute. The due process rights of lawyers in the disciplinary process are flexible. When they conflict, which one will give way? To ask the question is, of course, to answer it.

Evidence abounds. On Friday March 24, the Executive Committee of State Bar Board of Trustees is considering the following proposal for its Legislative agenda:

Expedited Efforts to Protect the Public from Those Who Pose a Substantial Risk of Harm

Current law (Business and Professions Code section 6007(c)(2)) [the statute at issue in Conway] authorizes the State Bar Court to order that an attorney be involuntarily enrolled inactive upon finding that: (1) the attorney has caused or is causing substantial harm to their clients or the public; and (2) there is a reasonable probability both that OCTC will prevail on the underlying misconduct matter and that the attorney will be disbarred. These involuntary inactive proceedings are undertaken to expeditiously stop an attorney from continuing to practice while the underlying misconduct matter is proceeding at its normal pace. This proposal would instead allow the court to enroll attorneys involuntarily inactive where the attorney is a reasonable probability that the attorney will be subject to an actual suspension of 12 months or more and the other criteria are met. The proposal will enhance the State Bar’s ability to protect the public where there is a showing of substantial harm, by permitting an early interim suspension where a lengthy actual suspension is reasonably probable. This is limited to attorneys who have committed serious misconduct and pose a risk to the public. Under the existing law, if the State Bar Court finds that OCTC has presented substantial evidence that an attorney has multiple misappropriations totaling over $100,000, but the attorney has no prior record of discipline, the attorney is not reasonably likely to be disbarred under the discipline standards. As a result, such an attorney would continue to have the ability to practice, engage new clients, access client trust accounts (CTAs), and engage in similar activity until the investigation concludes, OCTC files a Notice of Disciplinary Charges, the State Bar Court recommends discipline, and the Supreme Court approves that recommendation. Under the facts noted above, although a lengthy actual suspension would be imposed, it is not clear that disbarment would result. The proposed amendment to Business and Professions Code section 6007(c)(2) would allow the court, in this example, to protect existing and future clients by halting the ability of this attorney to continue to practice while the process moves forward. Between 2017 and 2021, OCTC has sought involuntary inactive enrollment for 11 attorneys pursuant to section 6007(c)(2), with the majority of those occurring in 2019 at seven cases. OCTC estimates that these numbers will double under this proposal.

The proposed change would expedite the discipline process to allow a suspension after something less than a full trial with a burden of proof (reasonable probability) substantially lower than the burden of proof in a full trial (clear and convincing evidence) and without the approval of the California Supreme Court. The lawyer would still be entitled to a full trial, but with little point; even if the lawyer is fully exonerated, permanent damage has been done, including damage to the lawyer’s ability to fund the defense. The rationale behind the interim remedy is that the attorney is inflicting ongoing harm, but the proposed mechanism refers to the likely discipline for misconduct already charged. It is a thinly disguised mechanism for expediting the discipline process while significantly less due process.

All in the name of public protection, but where is the evidence that this fast track will protect the public better than the discipline process as it already exists? None is cited, and it may be confidently predicted that none will be offered. None ever is. The fact that the Office of Chief Trial Counsel says it will protect the public is all the evidence needed. Discipline exists to protect the public; therefore, more discipline always means more public protection, right?

The modern discipline system is built on this dubious logic. The only procedural change sought by the Office of Chief Trial Counsel in the last 30 years that has not been granted has been permanent disbarment, and a variation on it was worked into Cal. Rule Ct. 9.10(f) in the wake of the Silverton decision.

The California State Bar has a commission looking into the fairness of the discipline system. That commission is focused on racial disparities in discipline outcomes, not the overall fairness of the system. If section 6001.1 is taken at face value, a discipline system that treated every lawyer equally unfairly would be perfectly acceptable if it resulted in greater public protection. And so the “dozens of initiatives, policies, and procedures to improve access to and efficiency and effectiveness of the attorney discipline system and to enhance protection of the public” in the last few years will be followed by dozens more in the future. Will we see an endpoint, at point at which all the public protection which is possible has been achieved? At the risk of seeming kafkaesque, I think not.

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