Early in my career as a staff attorney at the StateBar, I telephoned a complainant to relay the happy news that the attorney she had complained of had been disbarred in another matter. “What? Is that all you are going to do to him?” was her angry reaction.
One of the most firmly established shibboleths of the attorney discipline proceedings is that they exist solely to protect the public, the justice system, confidence in profession and high professional standards (Standard 1.1 Standards for Attorney Sanctions of Professional Misconduct; In re Vaughan (1922) 189 Cal. 491, 496; Marsh v. State Bar of Cal., (1934) 2 Cal. 2d 75, 78: “It must first be noted that although the word ‘punishment’ is frequently used, the discipline of an attorney is not punitive in character.
The Legislature recently reinforced at least part of this bedrock principle by amending Business and Professions Code section 6001.1 to provide that “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.”
25 years ago the Legislature gave the State Bar a different direction in the form of Business and Professions Code section 6086.13:
(a) Any order of the Supreme Court imposing suspension or disbarment of a member of the State Bar, or accepting a resignation with a disciplinary matter pending may include an order that the member pay a monetary sanction not to exceed five thousand dollars ($5,000) for each violation, subject to a total limit of fifty thousand dollars ($50,000). (b) Monetary sanctions collected under subdivision (a) shall be deposited into the Client Security Fund. (c) The State Bar shall, with the approval of the Supreme Court, adopt rules setting forth guidelines for the imposition and collection of monetary sanctions under this section. (d) The authority granted under this section is in addition to the provisions of Section 6086.10 and any other authority to impose costs or monetary sanctions. (e) Monetary sanctions imposed under this section shall not be collected to the extent that the collection would impair the collection of criminal penalties or civil judgments arising out of transactions connected with the discipline of the attorney. In the event monetary sanctions are collected under this section and criminal penalties or civil judgments arising out of transactions connected with the discipline of the attorney are otherwise uncollectible, those penalties or judgments may be reimbursed from the Client Security Fund to the extent of the monetary sanctions collected under this section.
The source of this Legislative direction is lost in the mists of State Bar history but probably originated in the report of the Discipline Evaluation Committee aka the Alarcon Committee, a blue-ribbon panel headed by former Federal Judge Richard Alarcon that issued its report in 1994. Or maybe some other commission, report or State Bar study; there have so many that they begin to blur with the the passing years. Many of the Alarcon Commissions recommendations were acted on, and this is probably one of them.
The incredible part of the story is that some perfunctory work was done to promulgate regulations pursuant to 6068.13(c), the effort was abandoned sometime in 1995 after negative public comment to the first version and never resumed until this year. No one seemed to notice until recently. The reasons why the State Bar ignored this seeming Legislative mandate are unknown, at least to the authors of the current proposal.
I don’t know the reasons either, but my own reaction, as a prosecutor in the Office of Chief Trial Counsel in 1994 was that the imposition of monetary sanctions, even for the noble purpose of funding the Client Security Fund, was punitive and incompatible with the principle that discipline is not intended to be punitive. Discipline is not intended to be pain-free, quite the opposite, but if discipline, with all its consequences, is greater than necessary to protect the public, it is unfair and improper.
That is the principle and the ease with which we lapse into describing it as “punishment” (as the Marsh court noted) shows the difficulty in drawing that line. One State Bar Court Judge, in a moment of candor, dismissed the idea that it was anything but punishment. In the name of protecting the public, we have embraced inflicting much pain on disciplined attorneys, including the imposition of ruinous costs, especially if you seek to defend yourself, and the prospect of perpetual public professional ignominy. There has to be a point where discipline becomes so onerous that even the broadest definition of public protection doesn’t cover it. But a discipline system that is constantly being prodded to be more aggressive in protecting the public might not see it.
Early case law referred to the discipline process as being quasi-criminal (Vaughan, at 496; In re Ruffalo (1968) 390 U.S. 544, 551). But the judicial response to attempts to apply criminal law concepts, like double jeopardy and restrictions on search and seizure, to discipline was to emphasize its limited nature as public protection “The purpose of disbarment proceedings is not to punish the individual but to determine whether the attorney should continue in that capacity’ [citation] ‘in short, to reform the offender or else remove him from practice’ [citation] Emslie v. State Bar (1974)11 Cal. 3d 210, 225.)
What makes a sanction punitive? The Ninth Circuit had this to say in In Re Dyer:
We recently explained the difference between civil sanctions and criminal sanctions: Civil penalties must either be compensatory or designed to coerce compliance [citation]. In contrast, “a flat unconditional fine totaling even as little as $50” could be criminal “if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance,” and the fine is not compensatory. [citation] This is so regardless of whether the non-compensatory fine is payable to the court or to the complainant. [citation]. Whether the fine is payable to the complainant may, however, be one relevant factor in determining whether the fine is compensatory or punitive
In re Dyer, 322 F.3d 1178, 1192 (9th Cir. 2003). Dyer, as you might guess, is a bankruptcy case the Ninth Circuit was tasked with reviewing an order imposing punitive damages under 11 U.S.C. section 105(a). The Dyer court, noting that the court’s power under the statute was limited to measures necessary and appropriate to carry out the provision of title 11, held that the Bankruptcy Court’s were limited to imposing civil remedies appropriate for civil contempt, compensatory or compliance-inducing but not punishment for bad conduct.
provides that monies collected pursuant to the statute shall be paid to Client Security Fund but that they shall not be collected if that would affect criminal penalities or civil judgment and could even be used to satisfy those penalities or judgments. The purpose outlined in the statute is neither compensatory or compliance-inducing; it is fine, levied as punishment, in most cases to be used to pay the claims of individuals who have no connection to the misconduct. Moreover, proposed Rule of Procedure 5.137 provides that the amount of the fine increases with the degree of discipline and suggests a list of factors to be considered in setting the recommended fine, including:
1. Whether there was an intentional misappropriation of money;
2. The amount of the direct or indirect monetary loss to any victim(s);
3. Whether the misconduct was against a vulnerable victim, including but not limited to the aged, incapacitated, infirm, disabled, incarcerated, an immigrant, or a minor;
4.The seriousness of the conduct underlying the discipline;
5. Any prior discipline of the attorney;
6. The number of victims affected by the conduct in this matter (sic);
7. Whether the respondent has abandoned a client or the entire law practice;
8. Whether the respondent has been judicially sanctioned for engaging in abusive or frivolous conduct;
9. Whether the respondent has engaged in the unauthorized practice of law, or aided
others in the unauthorized practice of law;and/or (sic)
10. Whether an underlying criminal conviction resulted in a significant jail sentence.
Every factor on this list shows that the intent to the statute and underlying rule is to punish bad people, and the badder, the more punishment. So how do you square this with the new State Bar’s limited public protection?
The Legislature, of course, can enact a statute directing the State Bar to expand the purposes of discipline to include punishing bad people, even if for the ostensible purpose of funding the Client Security Fund. That goal is chimerical, anyway, given the very difficult time the State Bar has had collecting its costs from disciplined attorneys. Even if these monetary sanctions are approved, they will never make a significant dent in the amounts of money needed to keep the Fund operating in a timely way. But raising the $40 per year that each licensee pays into the fund seems politically impossible for some reasons.
The Supreme Court does not have to go along with it. There is no indication that the Supreme Court was pushing the State Bar to implement section 6068.13, at least not for the last 25 years. The statute requires the Supreme Court to approve new Rule of Procedure 5.137. Whether it does or not will let us know if the Supreme Court continues to view discipline as solely a matter of public protection or sees it as not incompatible with the State Bar’s ostensibly newfound zeal.