After 10 years of effort by the State Bar of California Rules Revision Commission (RRC), and four years of dithering by the State Bar and the Supreme Court, the Court has confirmed that it will not adopt any of the RRC’s work product. The State Bar has been ordered to go back to the beginning, set up a new commission and come with a new set of Rules of Professional Conduct by March 2017.

The handwriting has been on the wall for a long time ( See New Rules of Professional Conduct: Obsolete on Arrival? Kafkaesq, February 2012.)   The project was begun under the aegis of former Chief Justice Ron George, who thought that it was important to bring California’ s rules in line with the “evolving national ethical standards” reflected in the American Bar Association’s Model Rules, especially after the ABA announced around the turn of the century, with some fanfare, that it would be looking at changes in those Rules to meet the challenges of the new millenium.   The painfully slow process of the RRC was given a kick in the pants at some point by the George Supreme Court around 2007 and revised its process to start with the ABA Model Rules format, numbering and language and work from there. Continue reading →

The Review Dept. of the State Bar Court has granted the request of the Association of Discipline Defense Counsel and the Association of Southern California Defense Counsel for publication of the Court’s decision in In the Matter of Yee.

Yee is a case that arises out of State Bar’s annual audit of MCLE compliance, a practice that began in 2011.  The respondent in question was part of the first audit after she had affirmed her compliance with the 25 hour MCLE requirement on line on January 31, 2011.  When she was asked to provide proof, she was unable to locate her records. She completed the 25 hours required after the compliance period and paid a late fee.  In response to the State Bar’s investigation regarding her affirmation of compliance, she stated

At the time I made the affirmation, I recalled and believed that I had complied. In reviewing my records, I now believe that I made a mistake.” She explained, “I transitioned to a new job in mid-February 2009 and recall that I took classes prior to starting my new job. . . . I cannot find a record of those classes. [¶] . . . [¶] . . . [I]t is
possible that I may have confused classes that I took to satisfy the prior compliance period with
the current . . . period.” [She] acknowledged that “my records were and are lacking” and accepted
responsibility for her “error in memory and recordkeeping.”

The Office of Chief Trial Counsel argued that the respondent was culpable of intentionally misrepresenting her compliance with MCLE requirements and asked for thirty days of actual suspension.
Continue reading →

Consider the following chart which presents information from 21 discipline cases tried in State Bar Court where respondents were represented by discipline defense counsel since January 2013:

OCTC Demand                         State Bar Court Trial Result
1 Disbarment                                   6 month actual
2 Disbarment                                   6 month actual
3 Disbarment                                   2 year actual suspension
4 90 day actual suspension         Dismissal
5 90 day actual suspension         Dismissal
6 30 day actual suspension         Stayed suspension
7 Disbarment                                   Public Reproval
8 2 years actual suspension        1 year actual suspension
9 6 months actual suspension     30 days suspension
10 Disbarment                                 2 years actual suspension
11 Disbarment                                 Dismissal
12 2 years actual suspension      6 months actual suspension
13 Disbarment                                 2 years actual suspension
14 1 year actual suspension         90 days actual suspension
15 Disbarment                                 18 months actual suspension
16 90 days actual suspension      30 days actual suspension
17 Disbarment                                  1 year actual suspension
18 6 months actual suspension    Public Reproval
19 30 days actual suspension      Public Reproval
20 Disbarment                                 2 years actual suspension
21 Disbarment                                 90 days actual suspension

This is only a fraction of the cases tried in State Bar Court since January 1, 2013, of course. Continue reading →

Senator Joseph Dunn, Executive Director of the California State Bar, had this to say about the Discipline Standards Task Force in the ABA Journal:

The task force’s efforts could be the first step toward a significant revamping of the attorney misconduct sanctions, says the bar’s executive director, Joseph L. Dunn. “This could lead to a substantial rewrite, a minor rewrite, or even a change in basic philosophical approach,” Dunn says. “For example, many disciplinary rules are based on a rehabilitation model. Some believe that attorney disciplinary standards should move to more of a punishment model. The mission of the task force is to determine whether the disciplinary standards in force adequately protect the public and ensure attorney compliance with the ethical rules.”

No one I know who is knowledgeable about the discipline advocates punishment as a goal of the discipline system. Who is Joe Dunn talking about?

Senator Joseph Dunn

Not the Discipline Standards Task Force.
Continue reading →

The State Bar is moving forward with random audits of attorney client trust accounts.  A presentation to the Regulation Admissions and Discipline Oversight Committee (RAD) Thursday April 17 detailed preliminary steps taken to institute such audits, including determination of the sample population and necessary changes in statutes or rules to authorize such audits and create an enforcement mechanism.  A consultant has been engaged to work on the sample issue and the State Bar Office of General Counsel has been tasked with reviewing the existing law and recommending changes.  It is hoped that the costs of such audits can be reduced by relying on attorney self-reporting through a detailed questionnaire, rather than relying on teams of full-fledged auditors to examine records.
Continue reading →