12,000 Days Later – What I Have Learned About Legal Ethics

It has been said that every problem looks like a nail if the only tool you have is a hammer. The point of that jape is that we are all prisoners of our own experience. Experience is the tool we use to understand the world, and its limits naturally define how we understand it. 

So you understand where I am coming from when I say that ethics is the most important part of your practice as a lawyer.

I did not always think so. I went to a good law school. I studied all the things that I was told were important, the familiar list of subjects you need to know to pass the bar examination. The Big Ones – contracts, torts, civil procedure, criminal law, constitutional law, evidence. What I did not know (because no one told me) was knowledge of these things was not particularly important for the practice of law. Important for passing the bar examination, yes, and valuable, but not particularly important for the actual practice of law.

The really important things were crammed into a single two-unit course that I took toward the end of my first year, titled Ethics, Counseling, and Negotiation. It seems strange to me now that 90% of what I do as a lawyer was covered in a two-unit course.

A two-unit course that no one, not even the instructor, seemed to treat as particularly urgent but rather as more annoying but necessary information. Many of my fellow law students understood the purpose of the ethics component of the course as a checklist of things to avoid getting into trouble. A negative approach, not an explanation of what it means to be a lawyer. That was state of the art in 1983.

And so I never even read the California Rules of Professional Conduct until the day I went to work for the State Bar of California, a little over 12,000 days ago. I had never given legal ethics much thought until then, not even when I prepared for the Multistate Professional Responsibility Examination required for admission. And when I say prepared, I mean that I did not prepare at all. Just pick the “goody two-shoes answer,” I was told. And I passed.

Like most of my peers, I had gone to law school to make a good living while doing interesting work, certainly not to change the world. I had experience before law school in commercial finance, so that was an obvious path to my first goal as a lawyer, to be a business trial lawyer.

But a funny thing happened on the way there. Working in the high-pressure world of business litigation, I began to see that there was something wrong with the environment I was working in. Something wrong with the win at any cost mentality I was expected to embrace. Something wrong with using the law as a cudgel to beat business competitors into submission. Something wrong in being expected to work seven days a week, 12 hours a day. I was, admittedly, a slow learner. It wasn’t until a bench officer called me into his chambers to blast me and my firm for filing multiple ex-parte applications intended for no other purpose than to drive up the cost of litigation for the other side, that I really knew I was on the wrong path.

On a cold rainy Saturday night spent in the law firm library on an impossible research assignment, I picked up the California Lawyer magazine and saw an ad for a job at the State Bar of California. Maybe I can do this for a couple of years while I figure out what I want to do, I thought.

Now, here I am, having spent more than 12,000 days laboring in the field of legal ethics, passing through a State Bar career as a staff lawyer, discipline prosecutor, and a manager, passing through a career as a private practitioner, defending lawyers in discipline proceedings and advising lawyers on the law of legal ethics.  

What I have learned is that legal ethics is not an afterthought, not a checklist of potential trouble to avoid but the vital organizing principle central to what our profession is all about. All the other stuff is important, but it isn’t coherent without legal ethics, which is at the core of our daily work. As the Court of Appeal said in McClure v. Donovan, (1947) 82 Cal. App. 2d 664 “An attorney has a constant and perpetual rendezvous with ethics.”

The Preamble to the American Bar Association Model Rules of Professional Conduct is the best statement of what lawyering is all about. I recommend reading the entire Preamble, but here are some of the highlights:

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.”

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.”

Neither the Preamble nor the Model Rules are the law in California. But our California Rules of Professional Conduct, which are binding law in California, refer to them, as well as other persuasive authorities, as important for interpreting the California rules (Rule 1.0 [comment 4] “In addition to the authorities identified in paragraph (b)(2), opinions of ethics committees in California, although not binding, should be consulted for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

Knowledge of the California Rules of Professional Conduct is a must for California lawyers, as is knowledge of the statutory duties binding on lawyers in the State Bar Act, principally, but not exclusively, in Business and Professions Code section 6068. Like any other body of law, it is presumed that a lawyer knows the Rules of Professional Conduct and the State Bar Act.  Ignorance is not a defense. The Rules are enforced through professional discipline, which can include suspension of license and, if the violations are serious, disbarment.

 Keeping up with the volume of binding, black letter law of legal ethics is challenging for lawyers because it is constantly growing. The new California Rules of Professional Conduct adopted in 2018, incorporating many of the Model Rules, is about three times longer than the prior Rules. But it is a challenge that can be met through self-study and MCLE.  

Legal ethics is not something that only affects “bad” lawyers. It truly is a constant and perpetual rendezvous for every lawyer that needs to be at the forefront of every lawyer’s consciousness. What I have learned about legal ethics after 12,000 days is that the most formidable legal ethics challenge is to break through the complacency and lack of focus that busy lawyers so often succumb to.

State Bar: Transparency for Thee But Not For Me

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There is a lot of information on the State Bar of California website. But one thing you will not find. You won’t find decisions from the Hearing Department of the State Bar Court.

The State Bar Court page has a link to Hearing Department decisions. But you won’t find any after January 2019. That is, you won’t find recent ones. Instead, you will see this:

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Hearing Department decisions are accessible from April 2014 through January 2019, at which point they vanish. If you want to see a Hearing Department decision after January 2019, you will have to know the specific case number or Respondent’s name.

Not coincidently, January 2019 was when the State Bar’s new case management system, aptly named Odyssey, came online. The same Odyssey implicated in the recent disclosure of confidential information now conceded to be the result of a flaw in the software provided by Tyler Technologies, the State Bar vendor, and not the result of some nefarious hack.

Long ago in the mists of history, longer even than the nine years Odysseus wandered on the wind dark ocean sea, the Association of Discipline Defense Counsel (ADDC) asked then Chief Trial Counsel James Towery (now Judge Towery) to provide copies of the Hearing Department decisions. The reason was to educate defense counsel about what was happening in State Bar Court to better advise their clients on what to expect in State Bar Court litigation and obtain knowledge that might lead to better trials and more settlements. Only about 50% of respondents are represented by counsel in the State Bar Court and not all of them by members of the ADDC. Only two institutions are privy to the complete picture of what goes on in the State Bar Court, the Court itself and the prosecutor, the Office of Chief Trial Counsel (OCTC). Discipline defense counsel are like the blind men in the parable: a trunk here, a leg there but no overall appreciation for what the elephant was. Judge Towery readily agreed.

Later on, in 2014, the State Bar Court began publishing links to a monthly list of decisions from the Hearing Department, a rather lazy solution compared to the full access the State Bar Court affords to decisions published and unpublished from the Review Department. But a better solution in terms of allowing access to the public at large access and understanding of the work of the Hearing Department. And, most importantly, a solution that allowed access to the entire corpus of that work, the cases where OCTC was successful as well as the cases where OCTC was not successful, either because the recommended discipline was less than that advocated by OCTC or because OCTC failed to prove any part of its case, resulting in a dismissal of charges.

Transparency and the public’s right to know have been trumpeted by the State Bar in advocating many policies, including posting the notices of disciplinary charges on the State Bar’s website before those charges are proven and the posting of the Consumer Alert badges in ever-expanding categories of cases, most recently, cases involving felony convictions.

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These measures serve to protect the public, it is argued, by alerting consumers of legal services that the attorney that they might be thinking of hiring presents a potential danger. But it also serves the State Bar’s purpose to assure the public and the profession that it is zealously working to protect them. For the same reasons, attorneys who have been publicly disciplined are subject to publicity regarding their discipline, including inclusion in the Discipline Reports published in traditional legal newspapers and, more recently, postings on LinkedIn.

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Discipline defense counsel know they do because we often achieve good results for our clients at trial, sometimes including complete dismissals. But the second purpose, the public relations purpose, isn’t served by disseminating information regarding OCTC’s failures. Finding information on the cases that OCTC loses, including how far they fell short and why is difficult.

But the overall picture is murky. The State Bar does publish statistics in the Annual Discipline Report but no detailed information as to why cases filed in State Bar Court are resolved with no action. For instance, the Annual Discipline Report for 2020 contains an entry for cases closed by the State Bar Court with no action, with an explanatory footnote stating that this could occur for many reasons, including “(1) respondent was disbarred in another matter; (2) respondent was ordered inactive pursuant to Business and Professions Code section 6007(b); (3) respondent’s death, shortly before or after dismissal; (4) respondent’s resignation; (5) dismissal by OCTC; and (6) dismissal by State Bar Court.”

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As you can see, those numbers are not broken down by the types listed in the footnote.

Moreover, while complete dismissals are relatively few, there are no statistics on the much larger number of cases where OCTC sought a higher level of discipline than was ultimately decided on by the Court. This information can only be understood by an examination of the decisions themselves.

When Odyssey went live in January 2019, we were told that it would lead to greater transparency because it would allow the publication of the entire State Bar Court docket in each case online. This is true but misleading. More information is not necessarily better information, and without access to all Hearing Department decisions in one place, it is impossible for outsiders to fully analyze just how well OCTC is doing, measured by the yardstick of success in State Bar Court. Undoubtedly, OCTC closely analyzes each Hearing Department decision to determine whether to appeal it to the Review Department.

This information should be easily obtainable. Yet efforts by defense counsel to obtain these decisions have so far met with no success. And because State Bar Court no longer publishes even links to the decisions, they remain hidden from public view, accessible only in the dockets of individual cases. This is odd given that Review Department decisions are easily accessible. Whatever the explanation, this is incompatible with a government agency that has made transparency and the public’s right to know a central argument for publicizing its work.



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.

How Do You Solve A Problem Like John Eastman?*

A much less vexing problem.

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.

No Rest for the Wicked: Discipline Rules of Limitation

Statutes of limitation are a familiar concept for both lawyers and regular people. Sometimes referred to as statutes of repose, these are rules that impose time limits on the filing of an action in court, for instance, California Code of Civil Procedure section 340, which provides for two year period from the time of injury for filing an action. Lawyers, especially lawyers who deal with the law of lawyering, know that these statutes can be complex to apply, as shown by the statute of limitation for legal malpractice, section 340.6, which has spawned hundreds of judicial opinions interpreting it (476 at last count, according to Westlaw.) The reasons for statutes of repose are several as articulated by Aaron Larson:

Fairness: Legislators recognize that after the passage of a certain amount of time it can become difficult to defend against a lawsuit, due to fading memories, unavailable witnesses, the loss of evidence, and similar factors.

Judicial Efficiency: Both statutes of limitation and statutes of repose reduce the number of cases that are filed in court, and dispose of an additional subset of claims without the need for complicated hearings or trials.

Finality: For certain types of claim, such as claims against an estate, it makes sense to provide for a final date after which no further claims can be made. If there were no cut-off date for claims against an estate it would become difficult for a court to approve a final settlement and distribution of its assets, and heirs would be at risk of being ordered to return part or all of their inheritances to the estate in order to cover its liability for a late claim.

Attorney discipline is a type of specialized litigation in every state but very few states have a statute or rule of repose in the discipline arena. California does, modeled after its complex cousin, CCP section 340.6, and contained in State Bar Rule of Procedure 5.21(reproduced below).

The provenance of the Rule of limitation lies in one of the innumerable studies of the discipline system that have occurred over the last four decades. This is one that actually had some impact. In 1993, State Bar President Margaret Morrow created a commission to evaluate the extensive reforms enacted in the late 1980s under the leadership of State Senator Robert Presley and Robert Fellmeth, of the Center for Public Interest Law (CPIL) at the University of San Diego School of Law. The Commission was chaired by Justice Arthur Alarcon and known as the Alarcon Commission. The Alarcon Commission interviewed numerous individuals involved in the California discipline system (including me) and made a number of recommendations for changes, including the creation of a five-year rule of limitation on the filing of formal discipline charges. At the time, an oft-quoted observation was that only murder and attorney discipline did not have some rule or statute of repose.

Like most rules, the text reflects a number of limitations on the limitation. Primarily, the Rule only applies to a disciplinary proceeding based “solely” on a complainant’s allegations. All the other possible ways a discipline proceeding can come about, via a criminal conviction (Bus. & Prof. Code section 6101), via a reportable action (Bus. & Prof. Code section 6068(o) or section 6086.1), via an investigation initiated by the Office of Chief Trial Counsel (OCTC) (SBI), none of these trigger the five year period of limitation. The clock just keeps running. In one notable case, the Office of Chief Trial Counsel initiated a disciplinary proceeding in 2017 based on a Federal judge’s findings in a habeas proceeding of protection misconduct that occurred in 1984.

Second, the Rule contains many tolling provisions, some similar to the statute of limitations governing legal malpractice. Code Civ. Proc. section 340.6. It is tolled while the lawyer continues to represent the client. It is tolled while parallel proceedings occur in civil, criminal, or administrative tribunals. It is tolled if the attorney conceals facts about the violation until the State Bar or the victim discovers the true facts. The tolling provisions eat most of the rule.

Third, the Rule of Limitations does not apply to “continuing offense”, in which case in does not begin to run until “the offensive conduct ends.” In the Matter of Saxon (Review Dept. 2020) 5 Cal. State Bar Ct. Rptr. ___, slip opinion filed 6/26/20, 2020 WL 3485821) involved a lawyer who did not represent the victim as a lawyer but who was involved in a fiduciary relationship that required him to hold funds in trust as part of a motion picture deal. The hearing judge dismissed the proceeding under Rule 5.21. The Review Department revived it on appeal by construing (although “contorting” may be more accurate) “representation” to include the fiduciary duty of holding funds in trust outside of legal representation:

Based on the facts as alleged, we find that Saxon was acting as a fiduciary by holding funds in escrow, having been given precise instructions by the Financing Agreement. He remained in the capacity of a fiduciary with an obligation to hold the escrowed funds “in trust” until the Fandango production was completed and the purpose of the escrow fulfilled. As such, contrary to Saxon’s argument, the extension of the period of limitations was not endless—it ended when its purpose ended, and its purpose was the production. The [amended notice of discipline charges] states that the film was released in 2014, which would indicate that Saxon’s escrow responsibilities would be terminated at that time.

Saxon, slip opinion filed 6/26/20, at page 7.

Between the complainant limitation, the tolling provisions, and the continuing violation doctrine, there are few cases the Office of Chief Trial Counsel cannot prosecute, no matter how old. Yet, occasionally, motions to dismiss based on Rule 5.21 are sometimes granted. Therefore, OCTC has proposed additional reform of Rule 5.21, intended to ensure that there is truly no rest for the wicked. The proposed “reforms” would, among other things enshrine the Saxon rule, extend the time for filing by another two years if the investigation was subject to review by the Office of General Counsel and gut the complainant limitation by providing that even such a proceeding is not barred from prosecution if OCTC receives information from an independent source, even if that independent source was brought to OCTC’s attention by the complainant.

As an example, the OCTC has received complaints against prosecutors submitted by academic researchers premised on their review of public source materials including newspaper reports and judicial opinions. The OCTC believes that disciplinary proceedings arising from complaints of this type should be treated as independent source proceedings given that the complainant is simply a conduit for identifying independent source information, but the rule is unclear. Accordingly, proposed amendments: (1) provide examples of what constitutes independent source information, including court orders or opinions, a judge’s report, or a media report; and (2) make clear that the independent source exception applies regardless of how the State Bar learns of independent source information, even if the State Bar is notified of the information by a complainant. 

This is the scenario discussed in a prior post The SBI Mystery and it refers to complaints filed against Trump legal strategist John Eastman.  The implications of this statement are incredible. OCTC is saying that even with information from public sources, it may take them more than five years to investigate and make a decision as to whether to pursue formal discipline charges.

Public protection zealots sometimes ask why the discipline process is so slow, especially as the numbers of cases in the once-dreaded backlog have grown. Part of the answer now seems to lie in Parkinson’s law, the familiar adage that work expands to fill the time allotted. This was the original impetus for the widely reviled backlog statute, section 6094.5, originally enacted after the backlog scandal of the mid-1980s. As a result of recent growth of the backlog, this section was recently amended to require the State Bar to propose case processing standards no later than October 31, 2022 “for competently, accurately, and timely resolving cases within the Office of Chief Trial Counsel” …. “that reflect the goal of resolving attorney discipline cases in a timely, effective, and efficient manner while having small backlogs of attorney discipline cases and best protecting the public.” The amended legislation is careful to say that nothing in these standards creates a jurisdictional bar in any particular case.

An informal survey revealed that most states’ discipline systems do not have any rule of limitation. The text of Rule 5.21 reflects the inherent confusion about the nature to attorney discipline: does it exist to address the attorney’s fitness to practice or does it exist to vindicate a righteous grievance by a victim of misconduct. The Legislature has often seemed to tack in the second direction, with legislation giving complainants various rights in the discipline system (see sections 6092.5 and 6093.5.) If a Rule were truly to be written addressing fairness, judicial efficiency, and finality, it would be something much different than current Rule 5.21, perhaps a three-year period of limitation from the time the State Bar learns of the facts constituting the misconduct, with appropriate tolling provisions. But that isn’t going to happen.

Rule 5.21, Rules of Procedure of the State Bar of California

(A) Time Limit for Complaint. If a disciplinary proceeding is based solely on a complainant’s allegations of a violation of the State Bar Act or Rules of Professional Conduct, the proceeding must begin within five years from the date of the violation.

(B) When Violation Occurs. The State Bar Act or a Rule of Professional Conduct is violated when every element of a violation has occurred. But if the violation is a continuing offense, the violation occurs when the offensive conduct ends.

(C) Tolling. The five-year limit is tolled:

(1) while the attorney represents the complainant, the complainant’s family member, or the complainant’s business or employer;

(2) while the complainant is a minor, insane, or physically or mentally incapacitated;

(3) while civil, criminal, or administrative investigations or proceedings based on the same acts or circumstances as the violation are pending with any governmental agency, court, or tribunal;

(4) from the time the attorney conceals facts about the violation until the State Bar or the victim discovers the true facts;

(5) from the time the attorney fails to cooperate with an investigation of the violation until the attorney provides substantial cooperation;

(6) from the time the attorney makes false or misleading statements to the State Bar concerning the violation until the State Bar discovers the true facts;

(7) while the disciplinary investigation or proceeding is abated under rule 5.50;

(8) while the attorney is participating in an Alternative Dispute Resolution Mediation Discipline program, Agreement in Lieu of Discipline Prosecution program, or other authorized diversion program;

(9) while the investigation is ended by admonition; or

(10) while the complaint or investigation is pending before the Office of General Counsel Complaint Review Unit; or

(11) while the attorney is on inactive status pursuant to Business and Professions Code section 6007, subdivision (a) or (b).

(D) Authorized Diversion Program. If the attorney successfully completes an Alternative Dispute Resolution Mediation Discipline program, Agreement in Lieu of Discipline Prosecution program, or other authorized diversion program, the underlying allegations are barred.

(E) Office of General Counsel Complaint Review Unit. The State Bar must begin disciplinary proceedings within two years after proceedings before the Complaint Review Unit concludes.

(F) Death of Complainant. If a prospective complainant dies before the time to begin a disciplinary procedure expires, a surviving family member or the estate’s executor or administrator may file a complaint with the State Bar within two years after the complainant’s death.

(G) Independent Source. The five-year limit does not apply to disciplinary proceedings that were investigated and initiated by the State Bar based on information received from an independent source other than a complainant.

(H) Waiver. The attorney and State Bar may agree in writing to waive or extend the limitations in this rule.

(I) Reinstatement Proceedings. This rule does not apply to reinstatement proceedings

The Secret Girardi Investigation

Thomas Girardi

The Recorder reports that the State Bar of California has hired a law firm to investigate its handling of the complaints made against Tom Girardi.

It also announced that the details of the investigation would remain confidential. Ruben Duran, Chair of the Board of Trustees, is quoted thus: “Details of the investigation, including details of past closed complaints and investigations, must remain confidential to comply with the law and to give this investigation the greatest chance of success.”

The law referred to by Chair Duran is Business and Professions Code section 6086.1(b). It provides that

All disciplinary investigations are confidential until the time that formal charges are filed, and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:

(1) The licensee whose conduct is being investigated may waive confidentiality.

(2) The Chief Trial Counsel or Chair of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the licensee, the Chief Trial Counsel or Chair of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the licensee to a fair hearing. If the Chief Trial Counsel or Chair of the State Bar for any reason declines to exercise the authority provided by this paragraph or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a licensee that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.

Section 6086.1(c) provides that the Chief Trial Counsel may disclose confidential information as provided by section 6044.5(b): The Chief Trial Counsel or designee may disclose, in confidence, information not otherwise public under this chapter to “government agencies responsible for enforcement of civil and criminal laws.”

Under this statutory scheme, it seems the contents of any report completed by the law firm hired by the State Bar, Halpern May Ybarra Gelberg LLP, would remain confidential even from the State Legislature unless the Legislature amended to confidentiality statutes to exempt itself for this particular instance.

The Supreme Court is another matter. Because of their plenary power in the regulation of the legal profession (see Bus. & Prof. Code section 6100) and the State Bar’s status as their administrative arm in the exercise of that power, they would have access to the investigation. The Los Angeles Times filed a petition in the Supreme Court in June 2021 seeking an order that the State Bar disclose information regarding the Girardi complaints. The petition invokes the Supreme Court’s inherent authority and argues that disclosure is necessary to maintain public confidence in the judicial system:

“This Petition presents precisely the kind of circumstances in which the “maintenance of public confidence in the discipline system’s exercise of self-regulation” requires maximum transparency. [State Bar Rule of Procedure} 2302(d)(1)(A)(i). Given Girardi’s close ties to State Bar officials, and the influential positions he had in the state legal system, the agency’s failure to take any action against him for decades — despite rampant accusations of wrongdoing — raises serious questions. It is imperative that the public be fully apprised about the nature and extent of the State Bar’s prior disciplinary investigations into Girardi’s conduct. Indeed, public scrutiny would be warranted based solely on Girardi’s prominence in the legal establishment; over his years of practice, he and his colleagues held a number of powerful positions that gave him substantial influence over the state’s legal community. In particular, he served as one of the few private attorneys on the California Judicial Council, and he also served on a committee advising Governor Gavin Newsom on judicial appointments in Southern California. But as detailed in The Times’ investigative report of March 6, 2021, Girardi cultivated particularly deep connections at the State Bar. He had long-standing personal and professional relationships with State Bar executives, as well as officials who were directly involved in disciplinary investigations. . Howard Miller, who was president of the State Bar from 2009 to 2010, was an attorney at Girardi Keese for sixteen years, from 2002 to 2018. Girardi also had a close relationship with the Bar’s former executive director, Joe Dunn, and at one point Girardi’s firm reimbursed the agency for $5,000 in travel expenses by Dunn and State Bar investigator Tom Layton, which were the subject of an internal review. Girardi also provided free legal work to Bar investigator Tom Layton, and employed two of Layton’s children; Girardi also treated Layton to expensive meals, and flew him on his private jet. He also had a close relationship with Bar investigator John Noonen, as well as other personal and professional connections with State Bar attorneys. Both State Bar attorneys and judges attended Girardi’s lavish parties. More than once, Girardi invoked his connections with State Bar officials in legal proceedings where he had been accused of improper conduct. A former State Bar prosecutor even submitted a declaration supporting Girardi’s firm when it was sued by a former client, who alleged that Girardi mishandled settlement funds. On another occasion, Girardi referenced his relationship with a State Bar Court judge, when he was summoned to federal court in Philadelphia to respond to a judge’s concerns about Girardi sending litigation-related correspondence that was described as so “unprofessional” that the judge said it “possibly will lead … to disciplinary action.”

The LA Times petition states a compelling case. The case has been fully briefed and awaits a decision.

In its June 10, 2021, press release, the State Bar stated:

The audit, commissioned by Interim Chief Trial Counsel Melanie Lawrence, revealed mistakes made in some investigations over the many decades of Mr. Girardi’s career going back some 40 years and spanning the tenure of many Chief Trial Counsels. In particular, the audit identified significant issues regarding the Office of Chief Trial Counsel’s investigation and evaluation of high-dollar, high-volume trust accounts.

The Special Audit Committee Report dated November 19, 2021, painted those “mistakes” as simply a matter of the State Bar lacking adequate tools to detect client trust account misconduct and proposed a number of rule and regulatory fixes to correct that deficiency. Now, we are told an outside investigation is necessary to examine how the State Bar handled the Girardi investigations.

And so it is. But how can the State Bar maintain public confidence if the results remain a secret? Somebody at a high level, the Chief Justice or the Chairs of the Judiciary Committees in the Assembly and Senate, Mr. Umberg and Mr. Stone, who recently took the State Bar to task for its lack of focus on discipline, have to take action to clear the air.

Or, they can stall and hope that everyone forgets. Which course of action is the most likely?