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
It is still news to many lawyers, even to a number of lawyers who attended a reception at San Diego’s Hotel Republic this week to help kick off the new California Lawyers Association (CLA). The fact of that the State Bar of California has spun off its trade association function to a voluntary lawyers organization, principally composed of the former State Bar sections, groups of lawyers who practice in similar areas of law, and some other functions, and the California Young Lawyers Association, has not sunk in deeply. That itself is telling about the current Balkanized state of the legal profession, with almost everybody, ethics lawyers included, deeply occupied with their own particular bubble (ethics lawyers of course deal other lawyers’ bubbles on a daily basis.) We have come a long way from 1927, when the “unified bar” was an accurate descriptor, with consequences both good and bad. The legislation creating the CLA created a the largest bar association in the United States, with 100,000 members, literally overnight when it became effective January 1.
The now misnamed State Bar of California is left to struggle with performing its government regulatory function under its exclusive role as a consumer protection agency. One axis of State Bar dysfunction– trade association v. government agency– has been dealt with. The other axis — Legislature v. Supreme Court– continues, although the successful enactment of Senate Bill 36 after earlier efforts failed, bespeaks a level of communication between the Legislature and Supreme Court that is encouraging. The relatively smooth revision and enactment of the new Rules of Professional Conduct after the fiasco regarding the first attempt to revise the rules in this century.
But big problems remain. The Office of Chief Trial Counsel has just gone through a painful restructuring only to lose its newly chosen Chief Trial Counsel for reasons that are not clear. Adequate funding for the Client Security Fund remains an issue, to the point where the State Bar is considering actually enforcing a 25 year old law allowing it to recommend monetary sanctions in discipline matters. Questions hover over the future of the Lawyers Assistance Program (LAP), mandated by statute (Bus. & Prof. Code sections 6230 et seq.), but viewed by some as a little too beneficial to lawyers to be part of the new regulatory mindset, at least outside its discipline side corollary, the Alternative Discipline Program. Current problems can’t escape the shadow of 30+ years of State Bar dysfunction, even now that the trade association functions are not in the mix.
The CLA offers the promise of holding on something of the old State Bar that was not concerned with often dismal work of regulation. It is planning an annual meeting in September 2018 that will include receptions and activities formerly conducted at State Bar annual meetings. Those of us (like me) that enjoyed the camaraderie and fun of those meetings can participate but at a price. Will CLA entice enough lawyers to make the voluntary commitment necessary to hold on to these associative activities? Local bar associations have long feared that a statewide bar association would suck up too much of the oxygen fueling the volunteer spirit, oxygen that seems to be running out as younger lawyers don’t participate in voluntary associations as much as they used to. CLA is off to a good start in the high caliber personnel who are helping to get the new organization off the ground. But its ultimate success is in the hands of California lawyers who can participate or sit out the fun as they see fit.
On November 2, 2017, the California Supreme Court approved new revised Rule of Professional Conduct 5-110, the first new Rule from the Second State Bar Commission for the Rules of Professional Conduct (RRC-2.) This was the Rule that the Supreme Court suggested be considered for “fast-track” consideration in early 2015.
The “fast-track” was not without speed bumps. After an extensive writing process by RRC-2, including participation by a liaison from the Supreme Court, and two rounds of public comment, the Supreme Court returned the Rule for further consideration earlier this year. Now, 30 months after the suggestion of fast-tracking, the new Rule, substantially similar to ABA Model Rule 3.8, is ready for implementation.
Following in its wake are more than 100 other new revised Rules of Professional Conduct, submitted to Supreme Court in March 2017. And some in California’s legal ethics community are starting to wonder.
The previous experience of the first Rules Revision Committee (RRC-1) looms large. Between 2001 and 2009, RRC-1 went through an exhaustive process to generate a new set of revised Rules of Professional Conduct largely based (like the current Revised Rules) on the ABA Model Rules. Those Rules were approved by the State Bar and fitfully transmitted to the Supreme Court, where they languished until being rejected by the high court in 2014.
The participation of a Supreme Court liaison in the current process raised hopes that the current set of Rules would be speedily approved by the Court. Now, it looks like the Court will engage in a painstaking review process of its own that will probably take years, and could, conceivably, rejected as well.
So, we wait and wonder if the California will ever join the rest of the United States and adopt some version of the Model Rules.
Senate Bill 36, our current State Bar fee bill, seems to be coasting to passage in the Assembly and the Governor’s signature. It makes a number of significant changes to the governing structure of the State Bar that many (including me) have thought were overdue, including eliminating elected attorney trustees, replacing the office of State Bar President with an appointed chairperson and vice chairperson and, perhaps most significant of all, spinning off the State Bar sections into something called the Association (not to the confused with the hitmakers of the ’60s.) The kinds of changes that would be consistent with an organization slowly metamorphosizing from an unwieldy and confused hybrid of public and private to a pure governmental agency. Ultimately these changes will pay off. But part of how big they pay off depends on California lawyers react to a State Bar that no longer acts as their trade association in any particulars.
The fate of the State Bar’s Lawyer Assistance Program and its related diversion program in State Bar Court, the Alternative Discipline Program underline that challenges. And SB 36 underlines that underline with a last minute amendment to the bill that passed the Assembly Judiciary Committee on July 18, 2017, making this change to Bus. & Prof. Code section 6140.9:
Today I celebrate 30 years since my admission to the State Bar of California.
Like every year, I will celebrate this anniversary by re-reading Hoffman’s “Fifty Resolutions in Regard to Professional Deportment”, which is actually the resolution #50. By this act I will consecrate myself for yet another year bearing the heavy office of attorney and counselor at law.
Hoffman may be old (1836) but he never goes out of style. As I prepare for my new gig teaching professional responsibility, I don’t know that our current rules of professional responsibility represent that much of an improvement. So I commend them to you.