The California Supreme Court officially notified the world on May 18 that they will begin imposing the California Rule of Court 9.20 requirements on all attorneys subject to actual suspension of any length.  Historically, compliance with CRC 9.20 has only been ordered where the actual suspension was 90 days or longer.

CRC 9.20 gives the Supreme Court the discretion to include a reporting requirement in an order of suspension or disbarment, specifically requiring the lawyer to notify clients, co-counsel, opposing counsel, or opposing parties, of the suspension and filing the notice to opposing counsel or parties with the court in pending litigation. CRC 9.20 also requires the return of the client file and a refund of unearned fees.

The Supreme Court began implementing this new policy in January 2023 without prior notice. This led to much confusion and consternation among those involved in the discipline system, especially attorneys who had stipulated to actual suspensions of less than 90 days, expecting they would not have to comply with CRC 9.20. CRC 9.20 for a solo lawyer is tantamount to a death sentence for the attorney’s practice.   In at least one case, the Supreme Court issued a disciplinary order requiring CRC 9.20 in a case where the suspension was wholly stayed, i.e. no actual suspension imposed unless the lawyer later violates probation conditions. This makes no sense. The Supreme Court later amended its order nunc pro tunc to eliminate the CRC 9.20 requirement.

Dialog ensued between the State Bar Court and the Supreme Court. Representatives of the Association of Discipline Defense Counsel (ADDC) also communicated with the California Supreme Court. Both pointed out the historical practice of not imposing compliance where the actual suspension was less than 90 days. ADDC also pointed out the drastic consequences of CRC 9.20 compliance on solo and small firm lawyers. An attorney with even a 30 days suspension will face the prospect of rebuilding their practice from the ground up after the suspension ends.

These arguments did not sway the Supreme Court. But the Court recognized that changing this long-standing policy without notice was not fair and set a deadline for the State Bar Court to discontinue the practice on September 1, 2023. The Court’s spokesperson subsequently stated that the Supreme Court was unaware of the historical practice of not imposing CRC 9.20 in suspensions of less than 90 days, even though it has been issuing discipline orders for decades not imposing CRC 9.20 in suspensions of less than 90 days. The Supreme Court has not explained its motivation for changing the policy now, except to say that it “has never had the opportunity to weigh in on the propriety or soundness of the policy.”

Without diving deep into the question of what the Supreme Court knew and when did it know it,  as a practical matter, the policy change is firmly aligned with the post-Girardi zeitgeist, which might be summarized as measures meant to restore public confidence by eliminating structural aspects of the discipline system that appear to be too favorable to lawyers.   So far, the zeitgeist contains (1) the State Bar’s Client Trust Account Protection Program (CTAPP); (2) and the imminent adoption of either a California version of Rule of Professional Conduct 8.3 or Business and Professions Code section 6090.8(a) (essentially the more expansive ABA Model Rule 8.3) and (4) the Supreme Court policy directive on CRC 9.20.

Next up, according to the Board of Trustees’ agenda for their May 19 meeting, is the complete elimination of private reprovals. Girardi received a private reproval but was not publicly disciplined until 2022, when he was disbarred in a default proceeding, which began after the scandal broke in December 2020.

 At the same time, the system is being pulled in a different direction by the possibility that Rule of Professional Conduct 8.4.2, now out for public comment) will be enacted. Rule 8.4.2 will make incivility a disciplinable offense. Would incivility be reportable conduct under some version of Rule 8.3? The interaction of these two Rules raises the possibility of many more complaints from risk-averse lawyers trying to understand the vague parameters of their reporting duties under prospective Rule 8.3 and the vague definition of incivility under prospective Rule 8.4.2.

There will probably be more structural change to the discipline system inspired by its epic Girardi failure. Many will applaud it, saying that it is long overdue. Skeptics like me will wonder whether it really will do more to protect the public. But a zeitgeist, like any ghost, is hard to argue with.