A Dying Echo from the AB 1515 Fiasco

The Board of Trustees of the State Bar of California approved a proposal at its September 13 meeting from Trustee David Torres to provide for two members of the Board to serve as “liaisons with the Chief Executive Officer, the State Bar’s  legislative advocate, and State Bar Governmental Affairs staff during the course of any  year of a legislative session regarding the development of legislative proposals that may lead to requests for an affirmative vote by the Board of Trustees to sponsor specific legislation.”  The purpose of these Board liaisons would be to

…help in determining when the development of a legislative proposal has reached a point of sufficient specificity, for presentation to the full Board for its consideration of State Bar sponsorship. Under this proposal, legislative requests for State Bar sponsorship would be brought to the Board as early as possible, to facilitate full Board discussion and public comment.

The Board clearly did not appreciate its approval being requested “nunc pro tunc” on AB 1515 after it had already passed the Assembly Judiciary Committee.  Coupled with the overall tone of the Board meeting (more than one Trustee echoed the thrust of new President Craig Holden’s inaugural address, to paraphrase, that public protection means more than just being an attorney punishment machine) it looks like there is some pushback among the attorney members of the Board against the public protection regime as currently administered by Senator Dunn and the public members of the Board.  The AB 1515 fiasco was a glaringly apparently symptom of the confusion over who really runs the State Bar.  Good to see Board Members trying to take the reins.

UPL and the Lawyer’s Halo of Trust

The Question

At the last panel of the State Bar Ethics Symposium in San Francisco in April 2014, John Steele posed a question to his fellow panelist, Chas Rampathal, General Counsel of Legal Zoom, about what ethical rules presented the biggest obstacles to the provision of alternative legal services.  Unfortunately, time ran out before the question could be fully discussed.

A recent published Review Dept. decision may help fill in the answer.  In the Matter of Huang deals with a highly commoditized form of legal service, representing borrowers in loan modification, and a lawyer’s culpability of aiding the unauthorized practice of law.

The Halo of Trust

Despite our negative image, lawyers are still perceived as professionals who can be trusted.   Non-lawyer legal service providers do not yet share this halo of trust.  Part of the purpose of lawyer discipline proceedings is to maintain that halo and non-lawyers legal service providers lack it because there are no comparable mechanisms to police their behavior.   Because what they do is illegal.  At least sometimes.

In the matter before us the clients engaged the services of respondent. They expected and were entitled to have the services of an attorney in evaluating and settling their personal injury claims. Instead, they got the services of an adjuster and his negotiators, housed in offices bearing respondent’s name, with phones answered in respondent’s name and correspondence and negotiations conducted in respondent’s name, with little or no input from respondent.

In the Matter of Bragg (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 615 (1997 WL 215942).  Bragg involved an attorney who entered into a business relationship with a non-attorney “adjuster” to process his pre-litigation personal injury cases.  California Insurance Code section 15007 provides for a “public insurance adjuster [which] includes one who, for compensation, assists an insured in negotiating for or effecting a claim on behalf of an insured.

The Magic of the Lawyer’s Mantle

Bragg’s argument was essentially if the adjuster could do what he does on his own, how can I be culpable of aiding the unauthorized practice of law?  The Review Dept.’s answer was that those activities by a lay person, even if sanctioned by statute, become the unauthorized practice of law when that person is working under the aegis of an attorney.

Strangely, Bragg was not charged by the Office of Chief Trial Counsel (OCTC) with aiding the unauthorized practice of lawin violation of Rule Prof. Conduct 1-300(A). But they also had charged Bragg with acts of moral turpitude in his relationship with Hickman.  The Review Dept. found that Bragg “knew that he was abdicating his responsibilities as an attorney and acted purposefully in allowing Hickman to engage in activities which constituted the practice of law.”  OCTC didn’t spot the 1-300 violation; but Bragg was expected to.

The gravamen of what the Review Dept. articulated is a false advertising argument.  You hired an attorney but you got an adjuster.  You are entitled to individualized legal counsel, even if all you really wanted was the medical bills paid and legal extra cash.  In Richard Susskind‘s terms, you are entitled to (and presumably paying for) the “bespoke” legal services of a lawyer.   But something else comes with those “bespoke” services;  the expectation of an individual relationship of trust.

When a lawyer is involved, the nature of the service changes, transmutes.  It’s now imbued with the intangible, almost mystical, aspect of the lawyer as counselor.  Just as other cases dealing with unauthorized practice of law, there is almost religious qualify ascribed to the attorney-client relationship;  indeed, Benninghoff v Superior Court (2006) 136 Cal.App.4th 61, 68 speaks about what a “defrocked” lawyer may or may not do.

Huang, like Bragg, had an opportunity come his way.  It knocked in the form of the loan modification practice of an attorney who files had been seized by the Orange County DA.  Attached to those 100 files were two non-attorneys, Martinez and Campos, who operated under the name National Mitigation Service (NMS.) Mr. Huang had only been admitted three years when he began working with Martinez and Campos.  He told the Orange County and the State Bar that he would be hiring NMS to “process” the files.

The State Bar apparently did not inquire closely into what Huang’s role would be in that processing.  But just three years later it charged Huang with aiding the unauthorized practice of law.  The hearing judge found that the State Bar did not prove its that charge by clear and convincing evidence.  The Review Dept. seemed incredulous:

Huang created a lay negotiating service that permitted non-lawyers to practice law and elevated profit above the clients’ interests. …. “Although [loan modification] services might lawfully have been performed by . . . brokers, and other laymen, it does not follow that when they are rendered by an attorney, or in his office, they do not involve the practice of law. People call on lawyers for services that might otherwise be obtained from laymen because they expect and are entitled to legal counsel.” By delegating all the work on loan modification cases to nonattorney staff, Huang failed to “competently evaluate the client’s claim and represent the client appropriately.” [citing Bragg] Accordingly, we find he violated rule 1-300(A) in all eight client matters.

Emphasis added.  Huang’s practice had between 500 and 800 clients.  Those familiar with loan modification practice under programs like HAMP will know that it bore little relationship with the type of real time negotiating that lawyers typically engage in, except for occasional instances where a lawyer’s clout will have an impact.  This has changed a little with the enactment with the Homeowners Bill of Rights which has given lawyers a new and expanded potential role in loan modification.   But by and large it is the kind of commoditized legal service that could be more cheaply performed by someone who does not have the legal training of a lawyer.


The Missing Ingredient: Vitamin T

One can see why the Review Dept. granted OCTC’s motion to publish Huang.  It re-states the core selling value of the legal profession that lawyers are offering a highly individualized product:  a special relationship of trust with client.   That kind of personal attention to the client is often lacking when dealing with a highly commoditized high-volume practice such as loan modification.  Many aspects of a commoditized law practice can be more cheaply accomplished by non-lawyers but the lawyer has to be involved, not only in supervising the non-lawyers (who may know more about the subject matter of the practice) but to fulfill the client’s expectation of trust.  That means contact with the client.

Part of the reason that halo rests so heavily on the lawyer’s head is that lack of enforcement mechanisms like professional discipline for non-lawyer legal providers, a consequence of their general prohibition.   The State Bar of California is creeping slowly toward recognizing legal providers who are less credentialed than lawyers but the trend in the short term is to maintain, and indeed strengthen the remedies for non-lawyers delivering legal services.  The State Bar is actively seeking the ability to recover attorneys fees and costs in civil actions against such non-lawyers through former Assembly Bill 852.  A prior almost identical bill was vetoed by Gov. Brown after vocal opposition by the California Association of Legal Document Assistants (CALDA).

To bring the discussion full circle, Legal Zoom has found that the marketplace for commoditized legal services delivered by non-lawyers only went so far under the UPL rules.   So Legal Zoom now offers legal services from attorney licensed in all jurisdictions through its group legal plans.  The web site promises to help consumers “Find An Attorney You Can Trust” and “Build a Long Term Relationship With An Attorney You Can Trust..”


AB 1515 Dies a Quiet Death — For This Year

The California State Assembly approved AB 1515, the bill that would require California attorneys to place unearned advanced fees in trust by a vote of 79-1.  The bill is now been assigned to the Senate Judiciary Committee.

The State Bar Board of Trustees has tabled the recommendation from its Operations Committee that the Bar sponsor the bill.  It seems likely that the bill will be amended to carve out criminal defense and bankruptcy work.

John Steele and I had the pleasure of discussing the pros and cons of AB 1515 with the Santa Clara Bar Association Board. They asked excellent questions, including whether there is an empirical evidence regarding the role advanced fees play in funding solo and small firm practices.  Usually, there is little or no empirical evidence supporting the adoption of a new discipline rule and this time is not different.  It’s assumed that placing advanced fees in trust will increase public protection.  Moreover, its assumed that the quantum increase in public protection whatever negative consequences, intended or unintended, flow from the rule change.

The rationale for this rule change now is the state of the Client Security Fund, which paid out $11 million in 2013, most of which is claimed to be because of unearned fees claims.  But Client Security Fund rules only allow payment when the conduct amounts to conversion:

Client Security Fund Rule 3.431 (B): “Failure to refund unearned fees received in advance for services when the attorney performed an insignificant portion of the services or none at all. Such a failure constitutes a wrongful taking or conversion. All other instances of an attorney’s failure to return an unearned fee or the disputed portion of a fee are outside the scope of this provision and not reimbursable under these rules.”

Is placing advanced fees in a client trust account really going to address this type of dishonest conduct?  Carolyn Elefant at MySingle.com raises the question of whether there is a better way to help solo and small firm practices fund their cash flow AND protect consumers from being ripped off than the the traditional and costly method of requiring placing advanced fees in trust.  I have seen the power of credit card companies to bring fraudulently run businesses to a halt in the loan modification context where the business model is built on credit card payments.  Ms. Elefant dares to ask whether we even need the traditional client trust account given the protections that can be built into electronic payments.

The impact of financing in the provision of low cost legal services is acknowledged by the State Bar itself.

 But that issue never made it to the discussion of AB 1515–at least this year.  The news now comes that AB 1515’s sponsor Lorena Gonzalez had requested that bill be “held in Committee” — meaning it is dead for this year, to await revival next year in what hopefully will be a more scrupulous examination than this years’s strange process. 

ADDC Comment to State Bar “Consumer Alert” Proposal

September 10, 2013

Jeffrey Chappelle

Office of the Chief Trial Counsel

State Bar of California

1149 S. Hill St., 10th Floor

Los Angeles, CA 90015-2299

Re:  Comment to Board Item 2013-08

The Association of Discipline Defense Counsel (ADDC) submits the following comment on the proposed modification of the posting of a “Consumer Alerts” badge on the membership page of lawyers accused of misconduct, as set out in item 2013-08.

 The Association of Discipline Defense Counsel              

I am the President of ADDC, the bar association for lawyers who represent lawyers and others in disciplinary, admissions, and regulatory proceedings before the State Bar Court of California and the California Supreme Court.  Our members include former State Bar discipline prosecutors, former State Bar Court judges, and former members of the State Bar’s Standing Committee on Professional Responsibility and Conduct.   Collectively our members have hundreds of years of experience with the discipline system and the bar admission process.   I have practiced law for over 39 years, the last 18 of which I have specialized in attorney discipline defense.  From 1990-1995 I was a compensated Judge Pro Tem on the State Bar Court.

The Revised Consumer Alert Proposal

This proposal seeks modification of the State Bar’s existing policy to authorize the posting of a Consumer Alert: (1) where the NDC or petition for involuntary enrollment alleges any misappropriation of $25,000 or more (i.e. not limited to theft of client funds); (2) where the NDC or petition for involuntary enrollment alleges fifteen or more cases of professional misconduct (i.e. not limited to loan modification misconduct); and (3) where the State Bar has filed an application seeking Superior Court assumption of an attorney’s law practice, pursuant to Business and Professions Code section 6180 et. seq. or 6190 et. seq. The proposal further seeks authorization to keep the Consumer Alert on the member’s State Bar online profile page where the State Bar Court finds the member culpable of professional misconduct or grants the State Bar’s petition for involuntary inactive enrollment or where the Superior Court grants the State Bar’s application for court assumption of the member’s law practice.

The Consumer Alert Allows the Office of Chief Trial Counsel to Destroy an Attorney’s Practice without Having to Prove Disciplinary Charges

The economic impact on an attorney who has a Consumer Alert badge placed on his or her member page cannot be understated. It allows the State Bar to destroy an accused attorney’s practice without ever having to prove its case in State Bar Court.  Indeed, that is the rationale for it: to keep the accused attorney from acquiring new clients.  While filed discipline charges have always been accessible to the public, the internet has changed the way that many consumer clients choose counsel, just as it has changed the way everyone shops for goods and services:  more and more, those decisions are based on information acquired through the internet. While the Consumer Alert contains a disclaimer proclaiming that an accused attorney is presumed to be innocent of discipline charges, in practice that disclaimer will play no part in the consumer’s decision to hire counsel.  It is highly unlikely that any client who is aware of the Alert will employ that attorney.

It is established law that punishment is not a permissible aim of the discipline system.  A Consumer Alert issued on an attorney who is not a threat to the public is unduly punitive.  Any expansion of current policy must carefully define the circumstances where the Consumer Alert badge is posted.

For this reason that the Board of Trustees needs to be careful before expanding the current program.

The McHugh Case Illustrates the Potential Unfairness and Abuse of the Consumer Alert

The investigation and charging process of the Office of Chief Trial Counsel (OCTC) is not flawless.  This is illustrated by the recent Hearing Department decision In the Matter of McHugh (State Bar Court case no. 07-O-14334).[1]  Mr. McHugh was originally charged with 18 counts of misconduct in a single client matter; OCTC dismissed 5 counts before trial.  10 of the 13 remaining counts involved allegations of moral turpitude and the remaining three involved serious misconduct as well.   The Hearing Department’s decision after trial exonerated Mr. McHugh on a counts.  The hearing judge found with respect to almost all the counts that the evidence offered by the State Bar failed to prove any act of moral turpitude by Respondent, and that in many instances, the factual allegations were not supported by any evidence at trial whatsoever. Slip opinion at page 7.[2] 

Because he was exonerated at trial Mr. McHugh will be able to recover his out of pocket costs if the decision stands; he will not recover the substantial attorney’s fees that he paid his counsel for defense in State Bar Court (the Daily Journal in its article concerning this case reported McHugh’s attorney’s fees were $100,000).

It is the sense of ADDC and its membership that the McHugh decision is not an aberration, and that the pace of complete exonerations by the Hearing Department is increasing.  Only the Chief Trial Counsel would have precise number of cases that have resulted in complete or partial exoneration, or trends in that category, which information should be shared with this Committee to aid in its deliberations.

Mr. McHugh was subject to the Consumer Alert badge, although the disciplinary charges did not involve either loan modification misconduct or any allegation that he misappropriated more than $25,000.  It was placed on his Membership Records in apparent violation of the current policies adopted by the Board.  It has now been removed.  It is not clear whether the posting of the badge was intentionally done in violation of policy or through the negligence of OCTC in not understanding the parameters of the policy.

The Revised Proposed Policy Regarding Posting the Consumer Alert Badge after Any Culpability is Found is Unfair

The original proposal from the Chief Trial Counsel would have required the badge in every instance where a notice of disciplinary charges or 6007 petition was filed, regardless of the specifics of the alleged misconduct.  The proposal was withdraw after the May 9 meeting of the RAD Committee.[3] The proposal has now been modified to address the apparent unfairness of that original proposal to “badge” every attorney as a threat to the public regardless of the nature of the alleged misconduct by imposing a threshold where it is presumed the attorney is a threat to the public, i.e., where there are fifteen cases filed against the attorney.  It is our opinion there needs to be a clarification as to whether the fifteen case threshold refers to fifteen different counts, or to charges relating to fifteen distinct clients.  If fifteen cases means fifteen counts and not fifteen separate complainants, the threshold is subject to abuse by overzealous or repetitive pleading.

The revised proposed policy with respect to partial exonerations contains the same fundamental unfairness.  Regardless of the specifics of culpability or any mitigating circumstances,, or whether culpability was established by trial or by stipulation, or the level of discipline, every attorney found culpable of any misconduct would be subject to the “Consumer Alert.”

The use of term “Consumer Alert” can only mean that the attorney is a threat to the public.  But the purposes of discipline as set forth in Standard 1.3[4] include more than public protection; they also include protection of the courts and the legal profession; the maintenance of high professional standards by attorneys; and the preservation of public confidence in the legal profession. Rehabilitation of a member can also be a permissible objective of discipline. 

The fundamental unfairness of this portion of the proposal is manifest:  if the Consumer Alert is based on fifteen separate client matters, and the attorney is found culpable of one act of misconduct, no matter how insignificant it might be, the Consumer Alert would remain on the member page, even if the actual discipline was a public reproval.  Similarly, if an attorney was alleged to have misappropriated $25,000 and it turns out that all funds are properly accounted for and some far lesser misconduct is established (e.g., failure to promptly refund the unearned portion of a fee), the Consumer Alert remains.

Given the potential unfairness to attorneys found culpable of minor misconduct, the revised proposed policy needs further revision to establish appropriate thresholds for imposition of the Consumer Alert badge only where the factual basis of the discipline, inactive enrollment or assumption of jurisdiction demonstrates a threat to the public.

The Consumer Alert Should Be Removed on Completion of Reproval Conditions, Probation, or Return to Active Status

One of the permissive purposes of discipline is the rehabilitation of the attorney where it is not inconsistent with the other purposes of discipline (Standard 1.3.)  Rehabilitation has long been a purpose of the discipline system.  Attorneys are typically placed on disciplinary probation which serves both the public protection and rehabilitation goals of the discipline system.

The revised proposed policy should be amended to provide that the Consumer Alert badge should be removed when the disciplined attorney successfully completes his or her disciplinary reproval conditions, probation or resumes active status.  To maintain an alert on the page of a member who has been otherwise found to have completed  his or her probationary or reproval term successfully by the State Bar’s Office of Probation (and therefore, presumptively also by the Supreme Court or State Bar Court) would be punitive in nature while not furthering any substantial public protection goal inasmuch as the member has otherwise been determined to be fit to practice.


The revision of the proposed policy to impose a fifteen case threshold for imposition of the Consumer Alert on filing is an appropriate first step to protect the public as well as ameliorate potential unfairness to respondents.

The revised policy needs further revision to set appropriate thresholds for imposition of the Consumer Alert where the misconduct does not demonstrate a threat of harm to the public.

The revised policy needs further revision to provide that the Consumer Alert badge is removed on completion of reproval conditions, probation or return to active enrollment.      



President, Association of

Discipline Defense Counsel


VIA FIRST CLASS MAIL, FACSIMILE TO (213) 765-1029 AND E-MAIL TO                   Jeff.Chappelle@calbar.ca.gov

[2] The State Bar has appealed this decision to the Review Department.

[3]  The prior proposal did not provide for any public comment.  It merely asked the RAD Committee to recommend to the Board of Trustees to adopt the proposed policy.

[4]  Standard 1.3, Standards for Attorney Sanctions for Professional Misconduct, Title IV, Rules of Procedure of the State Bar of California.

Review Department Back in the Law Making Business

Not so long ago, it looked like the Review Department of the State Bar Court had gotten out of the law making business.  When the full-time professional State Bar Court was created in 1989, a new three judge panel was created as the State Bar Court’s appellate arm and given the power to issue written decisions that would serve as binding precedent in the Hearing Department, where discipline trials are conducted (current State Bar Rule of Procedure 5.159.)  The idea at that time was that to create a body of case law to supplement the existing (and sometimes confusing) Supreme Court case law on discipline.  The other purpose, less conspicuous at the time but readily apparent in hindsight, was to relieve the Supreme Court of its burden of discipline cases, which had become a significant percentage of its case load.

The first, second and third iterations of the Review Department (presided over by Lisa Pearlman, James Obrien, and Ronald Stovitz, respectively)  took its task to heart, producing four and 1/2  volumes of published precedential decisions between 1990 and 2007.  The pace of production slowed somewhat in the 21st century, and markedly after JoAnne Remke became presiding judge but after October 2010, it halted completely for a period of almost two years.  This gap, coinciding with the unprecedented turmoil at the State Bar: the governance struggle of 2011, the ascension of Jim Dunn as Executive Director, with de facto (if not de jure) authority over the discipline system, his subsequent purge of Chief Trial Counsel (now judge) James  Towery and the senior management of the Office of the Chief Trial Counsel, and the appointment of Dunn’s minion “zero tolerance” Jayne Kim as Chief Trial Counsel.

During this same time, discipline prosecutors, both subtly and overtly, advanced the idea that Review Department precedent didn’t mean much anymore.  In the wake of the Supreme Court’s decision In Re Silverton (2005) 36 Cal.4th 81, so the argument went, the only precedents that mattered were the Standards for Attorney Sanctions for Professional Conduct, written guidelines found in Title IV of the State Bar Rules of Procedure, the Supreme Court case law.

The Review Department was hardly inactive during this time period. It  produced many unpublished decisions, some dealing with weighty issues, such as In the Matter of Grant, which addressed the question of appropriate discipline following a felony conviction for possession of child pornography, a case subsequently accepted by the Supreme Court on review, and In the Matter of Eytan, which addressed the collateral estoppel effect of an appellate court sanction in the discipline process.  But none of these was deemed worthy of publication.

I wondered if the Review Department had exited the field completely.  As always, the mysterious force hovering behind the scenes was the California Supreme Court.   Was the lack of Review Department law-making at their direction, either explicit or implicit?  Because the Supreme Court and the State Bar, creatures of the judicial branch, aren’t subject to the transparency laws, the Brown Act and the Bagley-Keene Open Meeting Act, we don’t know what direction the high Court gives direction to its administrative arm.    State Bar staff often claim that they are just following the Supreme Court’s direction but when you ask them how that direction came to them, they fall silent.  We know that meetings occur but what is discussed is unknown to rest of us, who are reduced to reading tea leaves.  We will probably never know what role the Supreme Court played, if any.

The 23 month lacunae ended with the publication of In the Matter of Reiss, an opinion succinctly reaffirming well-established law how the Standards fit in the discipline analysis:

The purpose of attorney discipline is not to punish the attorney, but to protect the public,
the courts, and the legal profession. (Std. 1.3.) Ultimately, we balance all relevant factors,
including mitigating and aggravating circumstances, on a case-by-case basis to ensure that the
discipline imposed is consistent with its purpose. (In re Young (1989) 49 Cal.3d 257, 266.) We
begin our analysis with the standards and follow their guidelines whenever possible because they
promote uniformity. (In re Silverton (2005) 36 Cal.4th 81, 91-92.)

The most significant thing about Reiss is that the Review Department felt the necessity of re-stating this.

Reiss was followed by In the Matter of Swazi Taylor, an important decision interpreting the statute that forbids the collection of an advanced fee in loan modification case.  Taylor illustrates one of the problems with judge made law.  The Review Department, like all appellate courts, is limited to the record in front of it, the evidence and argument introduced by counsel.   Effective arguments that might have been made in the appeal were not made.  Moreover, the record in Taylor contains a significant mistake.  A key fact relied on by the Review Department in dismissing  Taylor’s claim of good faith was his knowledge of a 2009 State Bar FAQ that allegedly put him on notice that he could not divide his loan modification services in segments.  But the 2009 FAQ did not address that issue; it wasn’t amended until 2011 to address the “unbundling” of services.   Taylor is a flawed opinion; but it is the law.

Recently published opinions In the Matter of Lawrence and In the Matter of Song seem to confirm that the Review Department’s re-entry into the law making business.  Both cases address issues regarding the evaluation of mitigating evidence under the Standards.   Mr. Song argued that his testimony regarding  his emotional difficulties and ten’s years therapy to treat his inferiority complex resulting from stringent cultural expectations of him, and the testimony of his two therapists, was part of his “compelling” mitigation under Standard 2.2  that should justify something less than disbarment for intentionally misappropriating $112,293 from a client.   Mr. Lawrence, 81, presented evidence of his 60 year battle with tic douloureux and his recent craniotomy.  Under Standard 1.7(b), his fourth discipline should have resulted in disbarment, as urged by the Office of Chief Trial Counsel.  The Review Department found his evidence to be compelling mitigation that justified deviation from Standard 1.7(b), proving, perhaps, that not only is the quality of mercy not strained, but not incompatible with the Standards for Attorney Sanctions for Professional Misconduct.  No mercy for Mr. Song, however; the Court did not find that his emotional difficulties and claimed remorse predominated over his extremely serious misconduct.

The re-emergence of Review Department precedent adds an important element of stability to the California discipline system in a time of turmoil.  Perhaps its too much to refer to it as ‘adult supervision”; the Office of Chief Trial Counsel will always be the 800 gorilla of the discipline system but at least that highly politicized entity is not completely unrestrained as long as the Court is formulating rules that apply to more than one case.  Mistakes like the Taylor decision notwithstanding, the return of published Review Department decisions is a positive development to those of us who have still think that the purpose of the discipline system really is the protection of the public and the other purposes of  Standard 1.3, and not the punishment of “bad” attorneys.