State Bar Ad Hoc Commission Votes for Fairness; OCTC Takes a Powder

Sometimes she wins.

The State Bar’s Ad Hoc Commission on the Discipline System met on June 1, 2022. In a series of lopsided votes the Commission voted to make sweeping changes to the discipline system to make it fairer.

The Commission was formed by the Board of Trustees in 2020 in the wake of the Farkas report which found disparate discipline outcomes based on race. The stated goal of the Commission was to undertake “a comprehensive review of California’s attorney discipline system with the goal of ensuring that it is both fair and effective in protecting the public.” The Commission was charged with reporting its findings and recommendations to BoT by June 30, 2022. It met on June 1, 2020, and approved the following recommendations by overwhelming votes.

Early Neutral Evaluation Conference

The Commission on the Discipline System recommended seeking a statutory amendment to extend the deadline for the transmission of criminal conviction matters in misdemeanor cases to allow for an Early Neutral Evaluation Conference. Yes: 12. No: 1. Absent: 12.

Costs Associated with Discipline

The Commission on the Discipline System recommended the Board of Trustees reevaluate its current discipline cost model with a focus on reducing costs. This includes, but is not limited to, restructuring the costs structure so that attorneys are not penalized for going to trial or review and scaling fees when charges are dismissed. Yes:  13. No: 0. Absent: 12

The Commission recommended that the State Bar seek a statutory amendment to eliminate disciplinary sanctions. Yes: 12. No: 0. Absent: 13

Attorney Representation

The Commission recommended the Board of Trustees implement a State Bar Appointed Counsel Program based on an hourly rate structure similar to the 6007 Court Appointed Counsel Program. Yes:  13. No: 1. Absent: 11

Progressive Discipline

The Commission recommended that State Bar Board of Trustees analyze and modify Standards 1.6 and 1.8 to permit the greater exercise of judicial discretion with regards to progressive discipline.Yes:  10. No: 0. Absent: 15

Attorney Discipline on State Bar Website and Expungement of Attorney Discipline Records

The Commission recommended the Board of Trustees adopt the following timelines for removal of the attorney discipline from the website attorney profile page and for expungement of attorney discipline records:

  • Private reproval:  1 year after all conditions are met
  • Public reproval:  3 years
  • Probation with stayed suspension:  3 years of after conclusion of probation
  • Probation with actual suspension:  5 years from after reinstatement
  • Disbarment:  Public indefinitely (no change)

Yes:  9. No:  0. Abstain: 3. Absent: 13

These recommendations will now be reduced by State Bar staff to final report that will be presented to BoT. What happens then is anybody’s guess.

In its penultimate meeting, one where important votes were taken on recommendations, a large number of members failed to attend, including both Mr. Moawad and Ms. Lawrence, representatives of the Office of Chief Trial Counsel, the discipline prosecution office. We don’t know the impact will this have on whether these recommendations are adopted but it seems likely that OCTC will push back against all of these recommendations using the familiar all-purpose “public protection” rubric.

If so, that will be a shame. These recommendations address glaring inequities in the discipline system that have long existed, especially in the area of cost recovery and the punitive sanction statute. As pointed out in the course of the Commission’s work, California charges far more in costs than any other state and the way cost recovery is structured creates enormous leverage to settle cases on unfair terms. Similarly, the implementation of the punitive sanction statute is fundamentally at odds with a discipline system that, as we are told repeatedly, exists not to punish but to protect the public. Sanctions were sold as a way to fund the Client Security Fund, and only implemented after 25 years when the State Bar sought fee increases from the Legislature. We are going to find out something about the fundamental character of the State Bar of California in the upcoming discussion of these recommendations. Is there a place for fairness? Or is it largely about money?

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