2020: the Bottom Ten

Many years ago, Los Angeles Times sportswriter Steve Harvey originated “The Bottom Ten” a weekly column humorously documenting the worst in college football. The Bottom Ten mantle that has since been assumed by ESPN.com and Ryan McGee but the Rankman continues to inspire even as college football, like so many things, went off the rails in 2020. Things going off the rails is nothing new in our world, indeed it is “situation normal, etc.” Was 2020 worse than any other year? You be the judge as you peruse Kafkaeq’s 2020 Bottom Ten.

  1. The Discipline System Embraces Punishment.

The State Bar of California continued to implement Business and Professions Code section 6068.13, a 1994 statute that authorized the California Supreme Court to impose monetary sanctions in attorney discipline orders. The statute and the implementing rules enacted by the State Bar Board of Trustees do violence to the bedrock principle that the purpose of discipline is not punishment, but public protection, not only in principle but in practice as the sanctions issue will slow down the work of the State Bar Court, lead to more trials and fewer settlements. For more directly from my spleen see State Bar Gets Into Punishment Business

2. Tom Girardi.

This one is a little personal as Mr. Girardi was my medical malpractice instructor at Loyola. Long before the bright lights of celebrity in the wider world blinded him, he was already a legal superstar, in 1983 a fat guy in a poorly fitting suit, folksy and enormously entertaining, not a trace of Beverly Hills glitz. I don’t know what happened between 1983 and 2020. The plot sounds like something from film noir: was it the money, was it the dame or was it both? No matter, watching the downfall of a once-great lawyer is painful.

3. The President’s Lawyers.

I don’t think I need to elaborate. This could easily be the whole list. I won’t, except for this: one question is whether the ingrained reluctance of attorney regulators to get involved in “political” matters will bend or break now that litigation is the vehicle for advocating crackpot ideas.

4. Washington State Kills LLLT.

Not Washington State University, football’s favorite son of the Palouse, but the Washington Supreme Court. The wet northwest was a pioneer in the concept of creating a new class of legal professionals, Limited License Legal Technicians. Opponents claim it was a natural death, but all the evidence points to murder. Just as other states are pioneering measures to fill the justice gap, including California’s renewed interest in the LLLT concept, Washington takes a step back.

5. A Great Leap Forward (Into the Abyss?)

Utah and Arizona pioneer non-attorney ownership of law firms. This one is a Rorschach test. Depending on your point of view, it might be the key to plugging the justice gap or the death of the legal profession. I feel strongly about it both ways. The Guild cannot survive the social and economic forces behind these changes. Yet the proponents have greatly oversold the likelihood that enabling non-lawyers to own legal service providers will significantly lower the costs of delivering justice. The most likely result is that non-lawyer investors will make a lot of money in lucrative practice areas like personal injury mass torts and practice areas like martial dissolution will continue to suffer huge numbers of unrepresented poor litigants.

6. State Bar Goes Chapter 6

State Bar of California issues 3,000 chapter 6 notices to participants in the October 2020 online bar examination. Chapter 6 is the part of the California Admissions Rules that deal with bar examination misconduct. The State Bar issued about 3,000 of these notices (more than one-third of the applicants) regarding the October 2020 on-line bar examination. Violations included “looking away from the screen”. Panic ensued among a group of people already highly stressed about gaining admission to the bar and some hope of paying their student loans someday. A pending chapter 6 matter means they can’t register for the February 6 exam. To be fair, online bar examinations face a huge proctoring challenge and similar events have happened in other states but couldn’t this have been handled in a more sensitive way? (And a thank you to Lyle Moran and his colleagues at the ABA Journal for more great reporting.)

7. Pride Comes Before a Fall

Disciplinary counsel resigns after tweeting that he is “proud anti-Muslim bigot.” Again, from the ABA Journal: “Disciplinary counsel Jerry Morgan of the Tennessee Board of Professional Responsibility resigned after the state’s Administrative Office of the Courts investigated his social media posts, the Tennessean reports.” “Lawyer does bad thing” stories are a dime-a-dozen and I have mostly tried to stay away from them. But this one makes the list because Mr. Morgan was employed prosecuting lawyers for violating the ethics rules. One expects more from those ostensibly upholding our professional norms. Maybe that is a mistake.

8. Disco Revival

This a true story. No names are stated to protect the innocent and the guilty. In 1978, a lawyer is convicted of a felony crime involving moral turpitude. The lawyer is placed on interim suspension (Bus. & Prof. Code section 6102(a)) and, because summary disbarment is unavailable under the statute as it existed in 1978, ultimately stipulates to three-year actual suspension, retroactive to date of interim suspension.

Forty years and a spotless career later, the lawyer submits his fingerprints to the State Bar, as required by Cal. Rule Ct. 9.9.5. The Office of Chief Trial Counsel (OCTC) cross-checks the fingerprints against Dept. of Justice records and finds the criminal conviction. But OCTC’s Odyssey case management system can’t access the older records, even though the 1978 conviction appears on the lawyer’s membership records page.

In its zeal to impose discpline, no matter how old the misconduct, OCTC somehow manages the acquire a certified (and largely illegible) copy of the record of conviction and files that in 2020, initiating a second criminal conviction proceeding, leading to an order for interim suspension. The lawyer attempts to telephone the OCTC lawyer assigned to the case without response. Finally, desperate lawyer hires high-priced discipline defense counsel who resolves the matter within one day.

Perhaps this is trivial but it perfectly the illustrates the mechanical way the discipline system operates, moving forward like juggernaut, crushing lawyers beneath its wheels, without much thought.

9. Law Firms Bank Paycheck Protection Money

Rahn Emmanuel famously said never let a crisis go to waste. Many people, including more than a few lawyers, applied this principal to the current pandemic. “Why shouldn’t I, everyone else is doing it?” one of them said to me.

10. Life During Wartime

Hovering above everything, the pandemic. Lawyers, like Horatius, are at the bridge; when bad things happen, are among the first to know.

Unlike Horatius, our responses are not always positive. Our legal system is designed for conflict and increased conflict means more work for lawyers. This macabre aspect does not endear us to other people, however much we try to compensate with good works. I don’t know if it is just that I am watching more television but it sure seems like I am seeing many more lawyer and pseudo-lawyer ads, including many telling us that justice is a commodity that can be obtained if you pick up the telephone NOW! My favorite is the phony “boiler room” with lots of actors pretending to answer the calls that are just pouring in.

The necessity of social distancing has already had a dramatic impact on the profession; see item 6 above, and the recent ABA ethics opinion on lawyers working remotely that many (including me) hope will push us toward some type of national licensing to replace the obsolete patchwork approach to licensing based on geography. We can’t know all the ways the pandemic will permanently alter our profession but it is already accelerating the ongoing commodification of the law business and will undoubtedly accelerate the application of technology. That is good news for some; bad news for others (see item 5, above.)

The Important State Bar Report You Haven’t Heard About

The hallmark of that peculiar institution known as The State Bar of California* is perpetual change.

We now have the “Sandbox” which is going to experiment in new ways to deliver legal services at lower cost, sheltered from the impact of traditional rules about who gets to do that.

We also have the “Blue Ribbon” Commission that is looking at how to change the bar examination to make a better test of what we need in the lawyers of the 21st Century.

But there is one State Bar initiative that hasn’t garnered much attention whose impact may be just as dramatic. On May 15, 2020, the State Bar Governance in the Public Interest Task Force (affectionately known as GITPIT) issued its final report.

GITPIT was a driving force behind the legislative reforms that “de-unified” the State Bar of California in 2017, spinning off the trade association functions, including the State Bar sections, into the new California Lawyers Association, and leaving behind a (now mis-named) State Bar as a purely regulatory agency. GITPIT has now sunsetted but its final report moves beyond the relatively narrow issue of the organizational structure of the State Bar into the broader field of how the profession itself is regulated. Its subject is revolutionary; risk-based regulation.

The essence of risk-based regulation is moving beyond a regulation system, such as the current California discipline system, that reacts after problems arise to a system that actively works to prevent problems before they happen. In the words of the final report (at page 5):

For the State Bar of California, a risk-based regulatory approach may be usefully contrasted with the most common source of work for the attorney discipline system: the client-based complaint. The vast majority of the work of California’s attorney discipline system is driven by responding to complaints of attorney misconduct filed by clients. As a result, by definition, the discipline system is typically reactive, seeking to address misconduct—whether through discipline or, in the work of the Client Security Fund, through compensation of clients—only after harm has been done.6 A risk-based approach, however, focuses on the prevention and mitigation of harm. More specifically, and for purposes of this report, risk-based regulation may be distinguished by the following features:

•Using data to inform regulatory decision making;

•Focusing on caseloads in addition to cases; and

•Prioritizing regulation and enforcement based on risk.”

As part of its work, GITPIT looked at risk-based regulation in the Australian legal system.  Australia, also a leader in reforming rules related to the ownership of legal service providers, conducted qualitative research on lawyers who were discipline in Australia.  The results won’t be a surprise to anyone who has worked in the California discipline system:

The qualitative research also revealed patterns that had not been uncovered in the quantitative analysis. The complaint-prone lawyers appeared to be “ill-equipped generalists” whose efforts to be a “Jack or Jill of all trades” led to difficulties for one quarter of this group. The complaint-prone lawyers also appeared frequently to have both personal and professional relationships with clients resulting in “blurred professional boundaries.” Finally, they were professionally isolated. Although they insisted on the quality of their work and their character in their defense, they were unable to provide references to support those assertions.  What emerges from the qualitative portion of the research is a profile of attorneys who work on the edge. Personal and professional problems contribute to one another and multiply. Over half of the sample of 32 complaint-prone attorneys had some form of health impairment (mostly depression). [footnote 18: Surprisingly, substance abuse was rare, with only one of the 32 attorneys exhibiting it.] Half of the lawyers in the sample were in financial distress, and one third had recently experienced either a death or serious illness in the family. When a complaint is lodged against a lawyer, it appears to compound the stress already weighing on the subject attorney. Citing a discipline case from 2013, one Legal Services Commissioner noted: It is all too common for misconduct to arise from a failure to deal effectively with the disciplinary complaint and the investigation process, rather than the subject matter of the complaint itself……

Emphasis added. Part of the stigma of discipline is the moral judgment that accompanies it:  it is something that only happens to  “bad lawyers” who by extension are “bad people.”  The over-reliance in the California discipline system on the  “moral turpitude” (see, e.g., Bus. & Prof. Code section 6106) concept, a concept rejected as too vague by the drafters the ABA Model Rules, is part of the problem.  (Now that California has a robust Rules of Professional  Conduct,  based on the ABA Model Rules, including Rule 8.4, we should eliminate the 19th century Field Code junk that litters the Business & Professions Code.)  Ir is true that are there are evil lawyers and that they are sometimes disciplined.  But the vast majority of disciplined lawyers are troubled human beings, with depression being a major problem.

The essence of risk-based regulation is regulating legal practice before it is necessary to sanction behavior.  This is a controversial point, as GITPIT points out at page 14 in a reference to Philip K. Dick’s 1956 science fiction story “Minority Report”, later made into a pretty good movie.  For those unfamiliar with either, the premise is a future police force utilizing psychics to apprehend criminals before they commit their crimes.  Interventions based on predictive models are a more intrusive form of regulation than discipline after the fact.  But we are spending $80 million a year such a system and it isn’t at all clear how imposing this punishment (yes, punishment) is really helping to protect the public.

Traditional lawyer independence is a very attractive part of the legal profession. It is already under assault by market forces, including private investors who now have their Sandbox to play in.   Effective risk-based regulation might require the lawyers of the future to do much more than just hang up their shingle if they want to practice law.   What if every lawyer was wanted to open a client trust account was required to be educated on the client trust accounting rules and procedures before a bank could open the account? What if every lawyer or group of lawyers were to file a comprehensive written risk management protocol before they began to operate at all, including protocols for dealing with impairment?  What is every lawyer, even ostensible solo practitioners, were required to establish some kind of association with other lawyers to deal with professional isolation and lack of support?   Some of these ideas look a lot like what the early 20th-century idea called the “integrated bar” was supposed to accomplish and perhaps did successfully until the bar became too big and too specialized (and the conflict of interest too apparent) to support the quasi-public, quasi-private nature of the model.  The idea that helping lawyers helps to protect the public is still a good idea, but a little ironic given the State Bar’s recent transformation into a pure police agency.  Perhaps there was a baby in that bathwater after all.

For now, GITPIT recommends more study and some modest moves toward increased use of warning letters by the Office of Chief  Trial Counsel. 

For all it’s hazards, risk-based regulation deserves further study.  Let us hope that GITPIT’s final report doesn’t join the legions of studies and reports that have been gathering dust for decades on the shelves of the State Bar’s library.

* isn’t it about time we changed the name?

A Rainy Night in Georgia Legal Ethics

A black man is murdered. Two white suspects tell the police that the killing was self-defense. The police do not pursue the investigation.  Later, video is leaked to the news media that appears to show that the murder was not self-defense, that the murdered man was defending himself against one of the shotgun-wielding suspects.  The video provokes outrage.  The suspects are arrested and charged with murder, assault and assisting a felony.

And the source of the leaked video – a lawyer that the suspects had consulted with.

It sounds like a law school hypothetical but it isn’t.  It is the Ahmaud Arbery case. It presents one of the most difficult and disturbing problems in legal ethics.

Lawyers owe a duty of loyalty to their clients, including a duty to not to disclose confidential information that would be harmful to the client’s interests or embarrassing to the client.  That duty is also owed to prospective clients, even those who never ultimately employ the lawyers, on the theory that it encourages prospective clients to be candid with their prospective lawyer, to give the prospective lawyer all the information the lawyer needs to evaluate the case.  American Bar Association (ABA) Model Rule 1.18 reflects this tenet of legal ethics:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Every state has now adopted some version of the Model Rules, including Model Rule 1.18, with every state making its own changes.  Even California, the last holdout, has now adopted its own California customized version of the Model Rules, including its own Rule 1.18.  Georgia has not adopted Rule 1.18 but does have a comment to its confidentiality rule 1.6 that covers the same ground:

[4A] Information gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10

According to the New York Times:

The lawyer, Alan Tucker, said in an interview on Friday that the video had come from the cellphone of a man who had filmed the episode and that he later gave the footage to the radio station. Mr. Tucker’s role was confirmed by Scott Ryfun, who oversees the station’s programming.

Asked why he had leaked the video, Mr. Tucker said he had wanted to dispel rumors that he said had fueled tension in the community. “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” Mr. Tucker said.

“It got the truth out there as to what you could see,” he added. “My purpose was not to exonerate them or convict them.”

But for the consultation with suspects, Tucker would not have obtained the video. If Tucker had not leaked the video, murderers might have gotten away their crime.  But it looks like Tucker violated important principles of legal ethics, loyalty and the preservation of confidentiality.  Does loyalty to the community trump loyalty to the client?  Should the fact that he might have prevented a miscarriage of justice mitigate any violation?

Abbe Smith, in her law review article Telling Stories and Keeping Secrets  8 UDC/DCSL L. Rev. 255-268 (2005), came to this conclusion:

It could be that, in the end, I don’t have much faith in lawyers. I don’t want them to exercise their own moral discretion about whether to disclose client confidences. I don’t want to give lawyers the authority to determine when it is in the public interest to divulge confidences, even if they were allowed to do so only under limited circumstances, such as “where necessary to avoid ‘substantial injustice.'” I worry about lawyers acting as a “self-appointed moral elite,”‘ over-looking or overriding long-standing ethical standards in order to advance their own views of justice.

When a lawyer is confronted with the hardest legal ethics questions in concrete terms, they churn in the lawyer’s conscience, like a dark night in a Georgia thunderstorm. As they should.  But in the end, I agree with Smith. I can admire the “cause” lawyer, who thinks the cause trumps everything else, but only to a degree. In the end, we are have taken an oath to support the law and the ethical rules, and we have to pay the price for our choice.

State Bar Gets Into the Punishment Business

Effective April 1, 2020,  new State Bar Rule of Procedure 5.137 enables the State Bar Court to recommend to the California Supreme Court that a monetary sanction be imposed in an order imposing actual suspension, disbarment or accepting resignation wit charges pending.  The new Rule is authorized by Business & Professions Code section 6068.13, a statute originally passed in 1992.  The State Bar did nothing to implement section 6086.13 until 2018 (see 25 Years Later State Bar Heeds Legislative Call to Punish Lawyers.)  The impetus for using this dormant statutory authority was the financial crisis that the State Bar has suffered over the last few years.  When the Bar went to Sacramento asking for money, someone seems to have pointed out that the Bar had a tool it could use to help fund the Client Security Fund (CSF), a fund that pays restitution to victims of lawyer misconduct.  CSF had been in financial straits for a number of years since what was (then) known as the Great Recession occurred, an event that triggered large numbers of complaints against lawyers and increased the number of applications to the CSF.

The myth that disciplined lawyers are sitting on mountains of gold just waiting to be collected is a cherished one at the State Bar ever since it was given authority to collect its costs from those lawyers.  Collecting money from individuals whose ability to earn a a living has been taken away from them would seem to be dubious proposition.  Experience has born this out.  Despite strenuous efforts to collect discipline costs, the State Bar is owed millions – $236,777,027 as of January 2019. Yet the hope that more blood can be squeezed from this turnip never dies.


Perhaps the motto needs amendment

The punitive nature of the sanctions raises a separation of powers issue.  The punitive nature of the sanctions authorized by the Legislature is incompatible with the California Supreme Court’s bedrock authority that tells us the discipline isn’t punishment but public protection (see  25 Years Later…)  California is perhaps unique among states in that both the Legislature and the California Supreme Court exercise co-equal authority in lawyer regulation; “In the field of attorney-client conduct, we recognize that the judiciary and the Legislature are in some sense partners in regulation.”.)  In re Attorney Discipline System, (1998) 19 Cal. 4th 582, 602.

Attorney Discipline System was a case where the Legslature had failed to act in its traditional role in authorizing the State Bar to collect its licensing fees (quaintly called “dues” in those days.)  The Supreme Court concluded that it had authority to act in the Legislature’s stead and order a special assessment on California lawyers to fund the system.  The passage of the State Bar Act in 1927 did not diminish the Court’s plenary authority that existed at that time.   But the California Supreme Court went on in Attorney Discipline System to discuss its authority to ignore the Legislature when it acted in manner that “materially impaired our inherent power over admission and discipline (at 603.)

The High Court soon got the chance to deal with that second principle.   Incumbent State Bar Court judges filed an petition for a writ of mandate in January 2000 challenging changes in the statutes regarding appointment  of State Bar Court judges, changes taking some of those appointments away from the Supreme Court and giving them to the Legislature and Governor and also eliminating requirement that one Review Department judge be a non-lawyer.  It was widely speculated that the Legislation resulted from the Supreme Court’s decision in an admissions case, In Re Gossage (2000) 23 Cal.4th 1080, where the Supreme Court declined to admit a protege of the Speaker of the Assembly to membership in the State Bar.   The petition resulted in the Court’s opinion in Obrien v. Jones (2000) 23 Cal.4th 40, where the Court (Justice Kennard dissenting) found those statutory changes did not “defeat or materially impair our authority over the practice of law, and thus does not violate the separation of powers (at 44.)  Many, including me, bolstered by the Court’s assertive discussion of its own powers in Attorney Discipline System and dismayed by the Legislature’s action, were disappointed.  But the Court avoided the disruptive effect of the legislation by adding its own layer of judicial supervision on top by amending California Rule of Court 966 (now 9.11) shortly after the Obrien opinion.

Business and Professions Code section 6086.13 is careful to say that the Supreme Court may impose sanctions, not that it must.  Moreover, the Calfornia Supreme Court’s input led to major changes in the wording of new Rule of Procedure 5.137 and approved the Rule, as required by the statute.   But the separation of powers argument has not yet been placed squarely before them in terms of what action they should take.


But the mere existence sanctions rule is creating confusion and uncertainty in the discipline process now.   Possible sanctions are one more issue to be fought over between the Office of Chief Trial Counsel and Respondents and their counsel.  Everyone believes that sanctions will have to be addressed in stipulations resolving cases and it will make such stipulations harder to reach, increasing the number of cases that will go to trial.   Even some discipline prosecutors recognize that dealing with sanctions in a system that is not supposed to be punitive is just wrong.

The California Supreme Court will be confronted with a sanctions recommendation soon   We should hope that the Supreme Court will have enough integrity to reject the imposition of punitive sanctions at odds with its own often stated principles.  But we should also hope that some litigant in the discipline system will raise these issues so the Court will be compelled to deal with them.




25 Years Later, State Bar Heeds Legislative Call to Punish Lawyers

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.
Section 6086.13 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.