End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
California Legal Ethics
0.1:100 Sources of Law and Guidance
The California Rules of Professional Conduct (“CRPC”) were initially adopted by the California Supreme Court in 1927 and were substantially revised in 1975. By that time many states had adopted the ABA Model Code. However, California had a forty-five-year body of case law based upon its own statutes and rules. Therefore, the Board of Governors of the State Bar decided to retain the existing rules, and the 1975 revision consisted of partial augmentation of the CRPC with the ABA Model Code and the incorporation of significant California decisional case law. Another important set of revisions to the CRPC was made in 1989 by the Rules Revision Commission, resulting in the renumbering of the CRPC and substantial changes in many rules. Other significant changes became effective in 1992. Minor revisions or the creation of entirely new rules occur as part of an ongoing, evolving process.
The Official Discussion to the CRPC is important for a full understanding of the CRPC. In addition, the Request that the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California, and Memorandum and Supporting Documents in Explanation (December 1987) (the “1987 Request to the Supreme Court”) and the Request that the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California, and Memorandum and Supporting Documents in Explanation (December 1991) (the “1991 Request to the Supreme Court”), each of which were submitted to the California Supreme Court by the State Bar of California as part of the approval of the CRPC, contain useful explanations as to the changes made in the CRPC in 1989 and 1992.
Lawyer conduct in California is also governed by the State Bar Act, codified in Business and Professions Code (“B&PC”) § 6000 et seq. The provisions of the State Bar Act have been periodically amended or enacted by the legislature.
In addition to these formal rules and codes, many local bars have adopted Codes of Civility to address concerns regarding the lack of professionalism. The Los Angeles County Bar’s Code has been incorporated in the local rules of the Los Angeles Superior Court, and can justify the imposition of sanctions.
Pursuant to B&PC § 6076 (Rules of Professional Conduct; Formulation and Enforcement of Rules of Professional Conduct) and B&PC § 6075 (Board Disciplinary Authority), the Board of Governors of the State Bar has created the following rules and regulations:
Rules and Regulations of the State Bar, which address issues involving membership, administration of meetings, the conference of delegates, and are designed to implement the State Bar Act.
Rules Regulating the Admission to Practice of Law in California, involving the administrative process for admission.
Minimum Continuing Legal Education Rules and Regulations, designed to administer the legal education requirements of California lawyers.
California Rules of Professional Conduct (the CRPC), adopted by the Board of Governors with the approval of the Supreme Court.
State Bar Rules of Procedure, which govern procedures at the State Bar Court.
Client Security Fund Matters, Rules of Procedure, which apply to issues involving a client’s claim for reimbursement from the Client Security Fund, where the member’s conduct caused a loss, was “dishonest,” and occurred while the member was acting as an attorney or in a fiduciary capacity.
Rules of Procedure for Fee Arbitrations and Enforcement of Fee Awards, which govern the procedures utilized in fee or cost arbitrations, and the enforcement of these awards.
Guidelines/Minimum Standards for Operating Mandatory Fee Arbitration Programs, which are the minimum standards applicable to the many local bar association fee arbitration panels throughout the state.
Minimum Standards for Lawyer Referral Services, which are the minimum guidelines for State Bar-approved lawyer referral services.
Rules Regulating Interest-Bearing Trust Accounts for Indigents, which regulate the authorization and disbursement of funds collected from interest on lawyers’ trust accounts (these funds are employed to provide legal services to indigents through qualified legal service providers).
Law Corporation Rules, which set the minimum standards for a “law corporation” in California.
Limited Liability Partnership Rules and Regulations governing the registration of limited liability law partnerships.
Rules Governing the State Bar of California Program for Certifying Legal Specialists. California currently recognizes the following categories as certified legal specialists: appellate advocacy, probate, family, tax, estate planning, immigration, personal and small business bankruptcy, and workers’ compensation.
Registered Foreign Legal Consultant Rules and Regulations authorizing lawyers from other countries to provide advice to California citizens regarding the law of their home country.
Rules and Regulations of the California Legal Corps. The California Legal Corps is an organization of the bar which provides for preventative law, pro se clinics, community outreach programs, educational programs in schools, alternative dispute resolution programs, support for victims of disasters, and other programs designed to improve the access to justice of the poor or under represented.
Rules and Procedures of the Commission on Judicial Nominees Evaluation, which govern the evaluations and procedures for candidates nominated by the Governor for judicial appointment.
Policy Declarations of Commission on Judicial Performance, which are the procedures and guidelines for investigations of judicial officers.
The B&PC and the CRPC have been interpreted and clarified by many judicial decisions. In addition, there may be common law considerations which overlay some of the State Bar Act and CRPC structure.
Not all opinions of the California Courts of Appeal are published in the California Official Reports. Cal. Rule of Court 976(b) provides that opinions of the Courts of Appeal may not be published in the Official Reports unless certain criteria are met. In addition, the California Supreme Court, under Rule 976(c)(2), may order an opinion not to be published. Rule 977 provides that, with certain narrow exceptions, an opinion of a Court of Appeal that is not certified for publication or that is ordered depublished shall not be cited or relied on by a court or a party in any other action or proceeding. Practitioners have speculated that the Supreme Court occasionally uses the depublication procedure as one alternative to granting review and rendering its own decision with regard to a lower court decision with which it may disagree. Even though unpublished opinions may be less authoritative than published opinions, they may still be instructive to counsel in analyzing issues and devising arguments.
[See 0.1:101 Professional Codes, supra].
This section will highlight some of the more significant differences between the MR and the CRPC. To borrow a familiar metaphor, this section is intended as a look at the forest; for a view of the trees, the reader is directed to the particular substantive sections of the library.
Perhaps the most unusual aspect of California legal ethics is that "[m]ore than any other state, California governs the conduct of lawyers by statute." Stephen Gillers and Roy D. Simon, Jr. Regulation of Lawyers: Statutes and Standards (Little Brown 1996). Both the B&PC and the Civ. Code govern the conduct of lawyers in California. The Legislature therefore plays a relatively active role in the regulation of California lawyers. See, e.g., Civ. Code § 2860 (governing the provision of independent counsel to an insured by an insurer).
To a greater extent than the MR, California ethics rules emphasize and require writings. For example, CRPC 3-310 requires that a lawyer obtain "informed written consent" before undertaking representation of more than one client in a particular matter where there are potential conflicts between those clients' interests. MR 1.7 does not specifically require a client's written consent under analogous circumstances. CRPC 3-310(F) requires that a lawyer obtain the client's written consent to receive compensation from a third-party payor for legal services; MR 1.7 does not require written consent. Moreover, CRPC 3-310 provides that a lawyer can undertake certain matters with the written consent of clients that MR 1.7 would not permit under any circumstances. See MR 1.7.
Another example is provided by B&PC § 6147; B&PC § 6148. Those provisions require that both contingency and fixed fee agreements (in excess of $1000), respectively, be evidenced by a writing; MR 1.5 requires only that contingency fee agreements be reduced to writing.
The preamble to the MR explicitly states that "[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached." CRPC 1-100(A) provides likewise. But courts occasionally hold that a breach of the CRPC may be taken as evidence of a breach of fiduciary obligation by the lawyer. See Mirabito v. Liccardo (1st Dist. 1992) 4 Cal.App.4th 41, 5 Cal.Rptr.2d 571; [see 0.2:260 Criminal and Civil Liability, infra]. California has no "whistle-blower" provision analogous to MR 8.3. Thus, in California, a lawyer is not required to report to the state bar suspected or known ethical breaches committed by another lawyer.
CRPC 2-400 provides that a lawyer may be subject to discipline for discrimination in the "management or operation of a law practice." This provision prohibits discrimination based on race, national origin, sex, sexual orientation, religion, age or disability in either the employment of any person or the acceptance or termination of any client. A lawyer may not be disciplined under this provision unless he or she first has been found civilly liable for the alleged discrimination. There is no analogous provision in the MR.
0.2:200 Forms of Lawyer Regulation in CA
California lawyers are regulated by both the judiciary and the legislature. In some instances the CRPC will mirror or parallel the legislative regulations which are articulated in the State Bar Act, codified in B&PC § 6000 et seq.
The judiciary has inherent and primary regulatory authority. Brydonjack v. State Bar (1929) 208 Cal. 439, 281 P. 1018. The Supreme Court’s inherent powers include the admission and discipline of members of the profession (unless expressly delegated to the State Bar Court, an “arm” of the Supreme Court) and the acceptance or rejection of the CRPC. Hustedt v. Workers’ Comp. Appeals Board (1981) 30 Cal.3d 329, 178 Cal.Rptr. 801, 636 P.2d 1139.
In addition to Supreme Court regulation, the legislature actively and concurrently regulates the legal profession, subject to the Supreme Court’s authority to review. Legislative mandates or statutory expressions of regulation are contained in the State Bar Act. Prior to enactment of the State Bar Act, the Supreme Court administrated discipline, and the State Bar Act does not attempt to limit or diminish the Supreme Court’s authority. B&PC § 6100.
The State Bar Act, adopted in 1927, contains detailed procedures and proceedings involving the disbarment of lawyers and the imposition of discipline for conduct involving the practice of law or otherwise (criminal convictions, violations of court orders, acts involving moral turpitude, dishonest, corruption, etc.). The State Bar procedures set forth in the State Bar Act require that disciplined attorneys exhaust their State Bar remedies. In re Accusation by Walker (1948) 32 Cal.2d 488, 196 P.2d 882.
The Supreme Court retains final and broad authority, and attorneys can be disciplined for conduct which occurred prior to their admission to practice, see In re Bogart (1973) 9 Cal.3d 743, 108 Cal.Rptr. 815, 511 P.2d 1167, or for irregularity in their admission to practice. The California Supreme Court alone has the power to cancel an attorney’s license to practice. The imposition of discipline, extensively detailed in the State Bar Act, is not restricted to acts or conduct with a nexus to the practice of law, and can be imposed for activities outside of professional practice.
The oversight or management of the legal profession “are proper subjects for legislative control to the same extent and subject to the same limitations as in the case of any other profession or business that is created or related by statute,” according to Brydonjack v. State Bar (1929) 208 Cal. 439, 281 P. 1018, which sustained the constitutionality of the State Bar Act.
California has two parallel codes of professional regulation: that imposed by the legislature and that imposed under the CRPC. Often the legislature will proactively effectuate a statute to regulate specific conduct until a proposed Rule wends its way toward Supreme Court affirmation. For instance, regulations concerning sex with clients occur both in the B&PC and the CRPC [see 1.8:210 Sexual Relations with Clients, infra] however, the statute was enacted first. If the process involving the creation of a new rule is too lengthy, then the Supreme Court may unilaterally enact a rule. For example, CRPC 5-120 restricting trial publicity, was adopted by the Supreme Court while it was still being debated and fine-tuned by the State Bar’s Board of Governors.
Historically, discipline in the State of California had been handled by local grievance committees. These committees held hearings, screened applicants and provided recommendations to the Board of Governors, which then sent the recommendations to the Supreme Court. Many of the regulations contained in the B&PC still reference local committees.
In 1985, the San Francisco Examiner published an attack on the State Bar’s disciplinary system, which resulted in a Senate Task Force on the State Bar Disciplinary System. During this same period, the State Bar was being assailed by dissatisfied members who objected to the Bar’s participation and use of members’ dues regarding controversial issues such as filing amicus curiae briefs and the conduct of the Conference of Delegates in supporting gun control and other controversial legislation. This member dissatisfaction resulted in the decision in Keller v. State Bar (1990) 496 U.S. 1, 110 L.Ed.2d 1, 110 S.Ct. 2228, which indicated that mandatory membership dues may be utilized to formulate and support legal ethics and for disciplinary purposes, as is consistent with the mandated functions of the State Bar (fair administration of justice and fostering jurisprudence) but not for political and ideological activities. Significantly, in Keller, the U.S. Supreme Court concluded that the State Bar was more analogous to a labor union than to a governmental agency.
In response to the criticisms of the State Bar, the legislature enacted Senate Bill 1543 (1986 Statutes Ch 1114) which established the California Attorney Disciplinary and Competency Commission as an arm of the Supreme Court. Of the fifteen members on the Commission, the Bill required that a majority be public, or non-lawyer, members. The Bill also required establishment of a system using full-time appointed State Bar judges to fulfill the adjudicative function. This replaced the previous system of volunteer referee judges, who in many cases lacked sufficient formal training, experience, and knowledge of precedential cases. The Bill also authorized the appointment of a discipline monitor to reform the disciplinary system. Robert Fellmeth, the monitor, urged the adoption of over 200 recommendations to change the existing system. Many of the recommendations involved increasing the ability of the system to address the backlog of client complaints, increasing detection procedures, and the creation of a full-time State Bar Court. Fellmeth issued annual reports between 1987 and 1992.
During this period, substantial changes were enacted. Repeat offenders with numerous complaints and criminal convictions were systematically tracked. The prosecutors in the Office of Trials received substantial funding, which allowed them to become more vigorous and aggressive.
In 1989, the State Bar Court was created with six full-time hearing judges appointed by the Supreme Court, who conducted trial proceedings. The Review Department, also full-time, was composed of a presiding judge and two other judges (including a non-lawyer). Another significant change was that review was no longer automatic and would occur only if requested. Review was based upon the record established at the hearing level.
In 1990, the Supreme Court approved “finality rules,” which consisted of two major changes. State Bar Court decisions were not automatically reviewed. If review was sought, the Supreme Court based its review on an “abuse of discretion” standard, and review would only occur where the Bar failed to afford the participating party due process or engaged in conduct exceeding the bounds of its jurisdiction.
In 1993, the State Bar President sought and established an outside evaluation committee to determine if the large expenditure of funds on disciplinary functions was efficient. The Report of the Discipline Evaluation Committee to the Board of Governors was made in August 1994. Although essentially approving of the management and operation of the Office of Trials, the Report resulted in substantial reductions in the State Bar Court, including a reduction in staff, the elimination of the use of pro-tem judges who handled certain assigned trials and settlement conferences, and a reduction in the number of hearing judges.
Also in 1993, the Commission on the Future of the Legal Profession and the State Bar recommended by a 13-to-8 vote to maintain the mandatory bar, with other suggestions for reform from education of the profession and pro bono obligations, to mandatory malpractice insurance and reciprocity in terms of multi-jurisdictional practice.
In January 1995, Senator Quentin Kopp introduced Senate Bill 60, popularly known as the “plebiscite.” The Bill, which was enacted as 1995 Statutes Ch 782, was designed to require members to directly vote regarding the dissolution or retention of the mandatory bar organization in addition to requiring an extensive five-month audit. The auditors maintained that the State Bar failed to take advantage of opportunities to reduce the cost of membership dues and that the vast bulk of the budget was allocated to disciplinary issues as opposed to the majority of other membership issues. Senator Kopp encouraged the aggressive recoupment of disciplinary costs from disciplined attorneys; in addition he pointed out that many members were paying for services which they never utilized, such as the State Bar Daily (a new clipping service), the Ethics Hotline, public education programs, and the fee arbitration program. For a detailed discussion of these and other events between 1985 and 1995, see W.T. Gallagher, “California Practicum: Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar,” (1995) 22 Pepp. L. Rev. 485, 537-603.
Two thirds of the members voting in the plebiscite voted to retain the existing system. A significantly greater number of lawyers chose either not to vote at all or to vote against retention of the existing system. Analysts maintain that the absence of an alternative was the primary flaw in the anti-mandatory-bar position.
In late 1997, a number of circumstances converged to once again bring the issue of appropriate State Bar activities to the forefront. Although a two-year fee bill was approved by the legislature, Governor Wilson vetoed the bill after the legislature had recessed for the year. (The legislature maintains a firm grip upon the State Bar through the budgetary process. Funding for the State Bar is generated by the annual fees imposed upon all California lawyers. However, before the State Bar can impose fees, the legislature must approve the Bar’s budget.) In a detailed two-page veto message, the Governor questioned the Bar’s continuing expansion of its statutorily-designated duties. In particular, the Governor charged that the Bar was involved in publishing, real property investment, social criticism and legislative activity. He asserted that the State Bar was bloated, arrogant, oblivious and unresponsive. He stated that the institution should focus upon its core objectives of discipline, admissions, and education as opposed to a detailed legislative agenda developed by the State Bar’s Conference of Delegates with the advice and input of the State Bar’s sections and committees.
Lacking the authority to levy dues because of the Governor’s veto, the State Bar faced significant financial retrenchment and laid off hundreds of employees. Eventually, the Supreme Court asserted its inherent authority over the profession by levying a change on attorneys to fund the discipline system. In re Attorney Discipline System (1998) 19 Cal. 4th 584, 79 Cal. Rptr. 2d 836, 967 P.2d 49. Shortly thereafter, the election of Governor Davis cleared the impasse between the political branches, and a new statute permitting the Bar to collect dues was passed. B&PC § 6140 (1999 Stats., Ch. 342, § 5).
[See 0.2:200 Bar Organizations, infra].
The State Bar is a public corporation created by the State Bar Act in 1927, with the right of perpetual succession (which can be terminated by the legislature). In 1960, it received constitutional status by virtue of a constitutional amendment (Cal. Const., Art. VI § 9).
The State Bar is statutorily regulated by the State Bar Act, which controls the activities of the organization and members, and functions of the bar. The constitutionality of the State Bar Act has been sustained after a number of attacks. The State Bar is an “arm or branch of the court”; therefore, in terms of the regulation of the practice, the State Bar makes recommendations to the Supreme Court. Brydonjack v. State Bar (1929) 208 Cal. 439, 281 P. 1018.
The State Bar of California is a mandatory bar, requiring that all persons admitted and licensed to practice law be members, except justices and judges of courts of record. B&PC § 6002.
A judge of a court of record, during his tenure in office, is not within the jurisdiction of the State Bar. State Bar v. Superior Court of Los Angeles County (1929) 207 Cal. 323, 278 P. 432. Where an attorney was serving in dual capacities as both a lawyer and a justice of the peace, however, the State Bar could properly impose discipline when the attorney represented a plaintiff in a court action. Christopher v. State Bar (1945) 26 Cal.2d 663, 161 P.2d 1.
After reinstatement, formerly disbarred attorneys become unconditional members of the State Bar, entitled to all the rights and privileges of membership. In re Cate (1929) 207 Cal. 433, 279 P. 131.
Under B&PC § 6001, in performing its obligations, the State Bar may sue and be sued, borrow money, and raise revenue. It may engage in all other acts incidental or necessary to the attainment of its purposes.
The State Bar is an organization of its members with a large degree of self-government. Some of its functions include admission, formulating Rules of Professional Conduct, disciplining lawyers, preventing the unauthorized practice of law, engaging in studies, recommending changes in procedural law and improving the administration of justice. Keller v. State Bar (1989) 47 Cal.3d 1152, 255 Cal.Rptr. 542, 767 P.2d 1020.
Board of Governors
The State Bar is governed by the Board of Governors. Eighteen of the members are attorneys from districts throughout the state, elected for three-year terms. B&PC §§ 6011, 6013.5, 6014. Six of the members are drawn from the public at large: the Speaker of the Assembly appoints one, the Senate Committee on Rules appoints one, and the Governor appoints four. An additional member is elected by the California Young lawyers for a one-year term. The president is selected from among the Board Members.
The meetings are open to the public with the exception of matters involving consultation with counsel vis-a-vis pending litigation. B&PC § 6026.5. Discussions in which particular members are referenced by name in regards to Involuntary Inactive Enrollment are also closed, B&PC § 6026.5, as are discussions involving particular employees and their complaints or grievances, absent the parties’ request for an open hearing. Appointments to committees and boards are also closed.
B&PC § 6035 contains specific provisions concerning conflicts of interest for both appointed and elected members of the Board of Governors. Disqualification is required in situations where it is “reasonably foreseeable that the decision will have a material financial effect.” A disqualified Board member is restricted from participating in voting, deliberation, or influencing another Board member. B&PC § 6036(a).
B&PC § 6036(b) requires the disqualification of a Board member based upon direct ownership or indirect investment in an involved business entity (more the $1000), or where any source of income over $250 is involved, during the preceding twelve months. Disqualification is also required where the member is concurrently participating in an involved business entity where the member is a director, officer, partner or trustee. B&PC § 6036(a).
If a Board member is subject to disqualification, the Board member is immediately prohibited from participation and must immediately disclose the adverse interest. Such disclosure satisfies the statute. Failure to comply does not invalidate the vote or determination of the Board or Committee. However, a Board member who intentionally fails to disclose is guilty of a misdemeanor and, if convicted, will be removed from membership on the Board. Civil penalties may also be imposed.
The Board of Governors has authority to formulate, create, and impose rules and regulations which are consistent with carrying out the purposes of the State Bar Act. They are empowered to assist in the administration of justice, assist in advancing jurisprudence, and advance the professional interest of members in terms of relations with the public. In re Herron (1931) 212 Cal. 196, 298 P. 474.
Although the State Bar is given broad authority to effectuate its dual duties of assisting in the administration of justice and fostering jurisprudence, the Supreme Court has final authority. The State Bar is restricted from encroaching upon the inherent authority of the Supreme Court, and while recommendations from the State Bar Court are accorded great deference, the final determinations regarding admissions, reinstatements, and disciplinary matters remain within the jurisdiction of the Supreme Court.
Voluntary Bar Organizations
In addition to the mandatory State Bar, there are over 130 counties, cities, local and specialty bar organizations in California. In addition to representing specific areas of legal practice, these bars also cover a wide variety of contemporary topics such as age, ethnicity, gender, and sexual orientation.
The California Supreme Court has inherent power to regulate the admission, reinstatement, and discipline of attorneys. B&PC § 6087. The Court has delegated its power to the State Bar, subject to Supreme Court approval and review.
The State Bar Court
The State Bar Court, an administrative agency, was established by the State Bar’s Board of Governors to address issues involving discipline, reinstatement, and admissions. B&PC § 6086.5. The Court is divided into a Hearing Department (trial level) and a Review Department (appellate level).
The Hearing Department handles discipline, regulation, admission and reinstatement, and virtually all other issues over which the State Bar has jurisdiction (removal of a member’s certified specialist designation, etc.). Although the statute authorizes the appointment of seven judges, due to economic concerns there are currently only five judges. The judges serve staggered terms. B&PC § 6079.1.
The Review Department functions primarily as an appellate panel, although it has original jurisdiction over some types of cases (interim suspension, summary disbarment, etc.). B&PC § 6086.65. There is a presiding judge who serves full-time, and two part-time judges (one of whom is a non-lawyer). The Review Department’s decisions are published in the State Bar Court Reporter and the Daily Appellate Reporter and are available on Westlaw and Lexis. These decisions are binding upon the Hearing Department and may be cited absent Supreme Court precedent. If the Supreme Court grants review, these decisions are depublished and may not be cited.
The State Bar Court has the power vested in the State Bar to address issues of discipline, proceedings to place attorneys on involuntary inactive status, probation revocation, criminal conviction proceedings, admission, and reinstatement. The constitutionality of this delegation has been sustained, and the State Bar Court is considered an “administrative arm” of the Supreme Court, with the Supreme Court retaining inherent authority. Lebbos v. State Bar (1991) 53 Cal.3d 37, 278 Cal.Rptr. 845, 806 P.2d 317.
Discipline may be imposed for violation of a statute (B&PC § 6078) or a Rule of Professional Conduct (B&PC § 6077). The State Bar Court may impose a private or public reproval, or a lesser sanction. Suspension or disbarment must be recommended to the Supreme Court. B&PC § 6077 requires that the violation be deemed “wilful.” The recommendations are not binding upon the Supreme Court.
Effectuation of Authority
The State Bar Court may adopt Rules of Practice, but it is not authorized to adopt Rules of Professional Conduct or to declare a statute unconstitutional (although it has the power to recommend that the Supreme Court invalidate a statute). In the Matter of Respondent B (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 424. Also, the State Bar Court judges lack the ability to impose monetary sanctions or cite the parties for contempt. In the Matter of Lapin (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 279.
Office of the Chief Trial Counsel
The Office of the Chief Trial Counsel is the prosecutorial arm of the State Bar. It is responsible for discharging the State Bar’s statutory obligations regarding discipline. B&PC §§ 6079.5 and 6092.5. The Chief Trial Counsel is confirmed by the California Senate, and serves a four-year term. The Chief Trial Counsel has exclusive authority to review complaints and inquiries and to conduct investigations to determine if a Notice of Disciplinary Charges should be issued. These duties include informing the public, organizations, and other interested parties about the work of the disciplinary agency and the rights of consumers to make complaints. B&PC § 6092.5.
Once a complaint is received, certain duties are triggered, such as: (1) acknowledgment of receipt of the complaint within two weeks; (2) response to reasonable status inquiries; (3) written notice of the disposition of the matter and the reasons for the disposition; (4) a summary of the attorney’s response, if it was the basis for dismissal of the complaint; (5) notice of appropriate procedures, including any time limits, if the complaining witness is not satisfied with the case disposition. B&PC § 6093.5.
B&PC § 6094.5 requires that the State Bar respond to inquiries regarding the status of pending public disciplinary cases, public discipline imposed upon a member, or pending criminal proceedings or convictions. The Chief Trial Counsel must conduct random audits of matters which have been dismissed, and report annually to the Assembly and Senate Judiciary Committees regarding disposition of disciplinary cases involving the commission of felonies. B&PC § 6095.
The Office of The Chief Trial Counsel is divided into two sections. The Intake Unit consists of attorneys and paraprofessionals and receives inquiries, complaints, and reports such as criminal convictions and bank overdrafts. Additionally, the Intake Unit monitors disciplinary proceedings in other states and conducts the State Bar’s ethics schools. Lawyers who are placed on probation are ordinarily required to attend one of two ethics school sessions, which are one-day programs which focus either on general ethics or on client trust account procedures.
The Enforcement Unit investigates and prosecutes matters referred by the Intake Unit. It consists of attorneys, investigators and support staff. In addition to the obligation of investigation, the Enforcement Unit drafts formal charges which are filed with the State Bar Court.
Lawyers are required to cooperate with State Bar investigations, subject to statutory and constitutional privileges. B&PC § 6068(i). Because the failure to cooperate can constitute a separate charge of misconduct, explanation of the constitutional or other privilege to the State Bar is advisable. Also, it may be prudent to resolve the matter at the earliest stage of the investigation.
At any stage of contact by the State Bar, the State Bar occupies an adversarial position. Consequently, if any State Bar employee contacts an attorney, the attorney should request a written statement of the allegations. The attorney should be aware that anything said can and will be used against the attorney’s interest.
The Office of Chief Trial Counsel investigates complaints made by clients, parties to whom the attorney owes a fiduciary duty, judges, other attorneys, and persons with significant information regarding an alleged violation. In some instances, the State Bar may initiate its own investigation absent a complaining party and on the basis of media publicity. “The State Bar will accept a complaint from any member of the public, who feels, whether rightly or wrongly, that he has been aggrieved by the action of the attorney, or feels interested in complaining about the attorney, no matter how informally made the complaint may be. . . .” Chronicle Publishing Co. v. Superior Court In and For City and County of San Francisco (1960) 54 Cal.2d 548, 7 Cal.Rptr. 109, 354 P.2d 637.
Complaints, responses and all evidence at the investigatory stage are confidential. B&PC § 6086.1(b).
It is a misdemeanor to knowingly make a false or malicious complaint to the State Bar. B&PC § 6043.5. However, there are no reported cases on this section. The State Bar has the authority to require a verified accusation, or may require specific evidence or facts supporting the complaint, before proceeding with an investigation. B&PC § 6043.
A complaint is absolutely privileged as a publication in an official proceeding, cannot be the basis for a libel claim. Nor is it actionable under the Federal Civil Rights Act. Prosecutors enjoy common law immunity from any award of damages based upon the performance of their essential prosecutorial functions. Wu v. State Bar (C.D. Cal. 1997) 953 F.Supp. 315.
Special deputy trial counsel
Under State Bar Rule of Procedure 2201(a) and (b), the Chief Trial Counsel may appoint a special deputy trial counsel as an independent prosecutor to avoid an appearance of impropriety where an inquiry or complaint is received against a member of the Board of Governors, an employee of the State Bar, or a member who has a current or recent personal, financial, or professional relationship to the State Bar.
0.2:240 Disciplinary Process [see also, 0.2:230]
B&PC § 6000 et seq. vests the authority to administer lawyer discipline in two places: the Board of Governors of the State Bar (Article 5) and the California courts (Article 6). However, the statute makes clear that neither Article 5 nor Article 6 limit the California Supreme Court's inherent authority over lawyer discipline. B&PC § 6087 (Article 5); B&PC § 6100 (Article 6). B&PC § 6087 authorizes and conditions the Supreme Court's ability to delegate its disciplinary authority to the State Bar.
In respect of the disciplinary authority of the Board of Governors, B&PC § 6075 states that "the provisions of this article [Article 5] provide a complete alternative and cumulative method of hearing and determining accusations against members of the State Bar." B&PC § 6077 authorizes the Board of Governors to adopt rules of professional conduct for members of the State Bar, and authorizes the Board of Governors to mete out discipline for a "wilful" breach of those rules. [See 0.4:500 Additional Definitions in CA, infra]. The Board is authorized to impose public or private reproval, or to recommend to the Supreme Court suspension of not more than three years, for a wilful violation of the rules of professional conduct. B&PC § 6077. Brotsky v. State Bar (1962) 57 Cal.2d 287, 300-302, 19 Cal.Rptr. 153, 368 P.2d 697. The Board similarly is authorized to impose public or private reproval "[a]fter a hearing for any of the causes set forth in the laws of the State of California warranting disbarment, suspension or other discipline," and may recommend more severe sanctions (suspension, disbarment) to the Supreme Court. B&PC § 6078.
B&PC § 6086.5 provides for the establishment of the State Bar Court, and authorizes it to "exercise the powers and authority vested in the board of governors . . . ." The State Bar Court has its own rules of practice. See State Bar Court Rules of Practice. The State Bar Court is divided into a Hearing Department (trial level) and a Review Department (appellate level). Decisions of the Review Department are considered to be controlling precedent in the Hearing Department. In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91.
The machinery of the disciplinary arm of the State Bar may be set in motion in one of three ways: (a) by complaints from disgruntled clients, (b) by complaints from other lawyers or judges, or (c) by virtue of the "conviction referral" process. The first category is self-explanatory; a client may complain to the State Bar about his or her lawyer for any number of reasons.
B&PC § 6086.7 requires that a court notify the State Bar if: (1) a final order of contempt is imposed against a lawyer that may involve grounds for discipline, (2) a modification or reversal of a judgment is based in whole or in part on lawyer misconduct, incompetence, or a lawyer's willful misrepresentation, or (3) judicial sanctions are imposed against a lawyer on grounds other than failure to provide discovery. The State Bar is then required to investigate whether to initiate disciplinary proceedings based on the matter. B&PC § 6086.8 requires that a court notify the State Bar of any judgment against a lawyer in any civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity. B&PC § 6101(b) requires that a criminal prosecuting agency notify the State Bar of the pendency of a felony or misdemeanor action against a lawyer immediately upon learning that the defendant is a lawyer, and B&PC § 6101(c) requires the clerk of the court in which a lawyer is convicted of a felony or misdemeanor to transmit a certified copy of the conviction to the State Bar. Although B&PC § 6101(d) requires that proceedings to discipline a lawyer on account of a conviction referral be undertaken in the Supreme Court, the Supreme Court, pursuant to B&PC § 6087, has delegated that responsibility to the State Bar Court. See Cal. Rule of Court 951(a).
An inquiry or complaint against a lawyer will be received and reviewed initially by the State Bar's Office of Intake ("Intake Unit"). The Intake Unit is staffed with non-lawyer complaint analysts. Clearly meritless complaints may be dismissed by the Intake Unit with or without notice to the complained-against lawyer. Complaints that survive the initial screening by the Intake Unit are forwarded to the Office of Investigations ("Investigations Unit"). The Investigations Unit is normally allotted a maximum of six months within which to investigate a complaint. If, however, a supervising lawyer is willing to classify the matter as "complex," then the Investigations Unit is given an extended period of time to perform its investigation.
During the preliminary and investigatory phase, a lawyer may receive either a telephone call or a letter of inquiry from the State Bar regarding the matter under investigation. B&PC § 6068(i) imposes an affirmative duty upon lawyers "[t]o cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against the attorney." Failure to comply with this section may serve as a separate basis for discipline. All disciplinary investigations are confidential until the time that formal charges are filed against the lawyer. B&PC § 6086.1(b). This confidentiality requirement may be waived by the State Bar, however, if such a waiver is "warranted for protection of the public." B&PC § 6086.1(b)(2). If the Investigations Unit determines that the complaint demonstrates reasonable cause for discipline, it will issue a Notice to Show Cause to the complained-against lawyer. The Notice to Show Cause marks the inception of formal disciplinary proceedings in the State Bar Court. Following the issuance of a Notice to Show Cause, hearings and records of disciplinary proceedings in the State Bar Court are public. B&PC § 6086.1(a)(1). After the issuance of the Notice to Show Cause, the Investigations Unit turns the matter over to the State Bar's Office of Trials for prosecution.
State Bar Court proceedings have been described as "quasi-criminal." In re Ruffalo (1968) 390 U.S. 544, 551, 20 L.Ed.2d 117, 88 S.Ct. 1222; Giddens v. State Bar (1981) 28 Cal.3d 730, 734, 170 Cal.Rptr. 812, 621 P.2d 851. A lawyer has a due process right to adequate notice of the charges against him or her. In the Matter of Glasser (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 163. A lawyer has a right to "reasonable notice" of the charges, and has a "reasonable opportunity and right" to: (a) defend him or herself through the introduction of evidence, (b) receive "exculpatory evidence" from the State Bar, (c) have the assistance of counsel, (d) examine and cross-examine witnesses, and (e) issue subpoenas. B&PC § 6085. The State Bar may not have an obligation to provide counsel to an indigent lawyer involved in State Bar Court proceedings. Ainsworth v. State Bar (1988) 46 Cal.3d 1218, 1229-31, 252 Cal.Rptr. 267, 762 P.2d 431 ("The procedures in State Bar matters for obtaining counsel and determining indigency are informal, and not guided by published rules."). A lawyer may assert the Fifth Amendment privilege in response to specific questions, and no adverse inference may be drawn from invocation of the privilege. In the Matter of Frazier (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 676. Civil discovery rules are applicable to proceedings in the State Bar Court. Brotsky v. State Bar (1962) 57 Cal.2d 287, 298-305, 19 Cal.Rptr. 153, 368 P.2d 697.
The Office of Trials has prosecutorial discretion. The Office of Trials may resolve a matter informally and privately by sending either an admonition or a warning letter to the lawyer. State Bar Rules of Procedure, Standard 1.4(a). The Office may take this approach if it deems the lawyer's transgressions too minor to justify prosecution, if it determines that the lawyer's violations were counterbalanced by strong indications of good-faith, or if the Office determines that it cannot maintain its burden of proof.
B&PC § 6068(l) authorizes the State Bar to enter into "agreements in lieu of discipline." An agreement in lieu of discipline may be analogized to a settlement or a plea bargain, whereby the Office of Trials forgoes prosecution of the lawyer in exchange for an agreement that the lawyer undertake some change in the lawyer's lifestyle or professional practice. For example, agreements in lieu of discipline are used frequently to address complaints of lawyer substance abuse or alcoholism. Like admonition or warning letters, agreements in lieu of discipline are reserved for relatively minor transgressions. The Probation Department of the State Bar monitors a lawyer's compliance with the agreement in lieu of discipline.
Private reproval is another alternative to prosecution, reserved for matters more serious than those disposed of by way of an agreement in lieu of discipline. State Bar Rules of Proc., Standard 1.4(b). To receive a private reproval, a lawyer will be required to stipulate to the relevant acts of misconduct, and the stipulation must be approved by the State Bar judge. The lawyer generally will be required to stipulate that the acts of misconduct were wilful in order to obtain a private reproval from the Office of Trials. Like the agreement in lieu of discipline, lawyers will be required to agree to certain conditions, such as passing the California Professional Responsibility Examination and perhaps restitution of unearned fees. See Cal. Rule of Court 956(a); State Bar Rules of Proc., Standard 1.5. Public reproval, stayed suspension, actual suspension, and disbarment are reserved for conduct substantially more egregious than that dealt with either by agreement in lieu of discipline or by private reproval. State Bar Rules of Proc., Standard 1.4(b)-(c). A public reproval will be accompanied by probation tailored to the violation. State Bar Rules of Proc., Standard 1.5. A suspension may be stayed for a period from one to five years, and the lawyer will be required to perform specific and tailored rehabilitative or probationary duties during the period the suspension is stayed. State Bar Rules of Proc., Standard 1.4(c)(i). The State Bar Court is required to file a certified copy of any decision recommending disbarment or suspension of a lawyer from practice "immediately" with the Clerk of the Supreme Court. B&PC § 6081. A willful failure to comply with a condition attached to a reproval or suspension may be cause for a separate disciplinary proceeding. In the Matter of Buckley (Review Dept. 1990) 1 Cal. State. Bar Ct. Rptr. 201, 206.
In 1992, the Legislature authorized the State Bar and the Supreme Court to impose monetary sanctions on a lawyer in connection with an order imposing suspension or disbarment. B&PC § 6086.13. The sanctions collected pursuant to this section are to be deposited into the Client Security Fund, B&PC § 6086.13(a). As of January 1, 1998, however, the Supreme Court has not adopted rules implementing this provision.
The State Bar has established a "three strikes rule" whereby if a lawyer has a record of two prior impositions of discipline for professional misconduct, then the penalty for a third act of professional misconduct shall be disbarment "unless the most compelling mitigating circumstances clearly predominate." State Bar Rules of Proc., Standard 1.7(b). Admonition and warning letters do not count as prior discipline for purposes of this rule; private reprovals and public reprovals count as prior discipline.
Costs will be assessed against the complained-against lawyer in proceedings that result in any sanction greater than private reproval. B&PC § 6086.10. The State Bar judge has the discretion to reduce a cost award for delay by prosecutors under certain circumstances, however. In the Matter of Respondent J (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 273. Attorney fees are expressly excluded from the calculation of costs. B&PC § 6086.10(b)(3); In the Matter of Chen (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 571. A complained-against lawyer may recover costs from the State Bar in the event the lawyer is completely exonerated of all disciplinary charges brought following a formal hearing. B&PC § 6086.10(d). Cal. Rule of Court 952 establishes the procedures for Supreme Court review of decisions of the State Bar Court. A lawyer may file a petition for review of a decision of the State Bar Court recommending suspension or disbarment within sixty days of the filing of a certified copy of the decision with the Clerk of the Supreme Court. B&PC § 6083(a); Cal. Rule of Court 952(a). A lawyer may petition for review of a decision to alter the terms of the lawyer's probation or to revoke the stay of suspension, of a decision regarding interim suspension, and of certain other decisions of the State Bar Court. See Id.
The Chief Trial Counsel and the Committee of Bar Examiners are authorized to petition the Supreme Court for review of a decision of the State Bar Court. See Cal. Rules of Court 952.5, 952.6.
The Supreme Court will review a decision of the State Bar Court when: (a) review is necessary to settle important questions of law, (b) the State Bar Court has acted outside its jurisdiction, (c) the lawyer did not receive a fair hearing in the State Bar Court, (d) the decision of the State Bar Court is against the weight of the evidence, or (e) the recommended discipline is inappropriate in the light of the record as a whole. Cal. Rule of Court 954.
Although a State Bar recommendation regarding discipline is entitled to "great weight," the Supreme Court will exercise its independent judgment as to appropriate discipline in a particular case. Sternlieb v. State Bar (1990) 52 Cal.3d 317, 331, 276 Cal.Rptr. 346, 801 P.2d 1097.
Upon entering an order for disbarment, or suspension of a lawyer in excess of 89 days, the Supreme Court routinely orders the lawyer to comply with Cal. Rule of Court 955. See In the Matter of Mitchell (Review Dept. 1991) 1 Cal. State. Bar Ct. Rptr. 332, 341. Cal. Rule of Court 955 requires that a lawyer provide notice, by way of certified or registered mail, to clients, co-counsel, and opposing counsel, of the imposition of such suspension or disbarment on the lawyer. The lawyer is required to file an affidavit of compliance with the Clerk of the State Bar Court. Cal. Rule of Court 955(c). The willful failure of a suspended lawyer to comply with Rule 955 may result in disbarment. Cal. Rule of Court 955(d); Bercovich v. State Bar (1990) 50 Cal.3d 116, 266 Cal.Rptr. 341, 785 P.2d 889.
Conviction of a felony or misdemeanor involving moral turpitude constitutes a cause for disbarment or suspension in California. B&PC § 6101(a). The clerk of the court in which a lawyer is convicted of a crime is required to transmit a certified copy of the record of conviction to the State Bar. B&PC § 6101(c). Although lodged in the Supreme Court by statute, the Supreme Court has by rule delegated the initial phases of the conviction referral process to the State Bar Court. Cal. Rule of Court 951(a).
Upon receipt of a record of conviction, the State Bar Court makes an initial determination of whether the crime of which the attorney was convicted involves "moral turpitude." B&PC § 6102(a). [See 0.4:450 Additional Definitions in CA, infra]. That determination will be based on a review of the statutory elements of the crime and a review of pertinent decisional law. If the State Bar Court determines that the crime involved, or that there is probable cause to believe that it involved, moral turpitude (or that it is a felony), the State Bar Court immediately will suspend the lawyer from the practice of law pending the outcome of disciplinary proceedings. The decision of the State Bar Court to impose immediate interim suspension is appealable to the Supreme Court pursuant to Cal. Rule of Court 952(c).
The disciplinary hearing will not take place until after the conviction has become "final." A conviction is deemed final when the time for appeal has elapsed, if no appeal has been taken, or where the conviction has been affirmed on appeal. B&PC § 6102(a). If the State Bar Court determines, either from the nature of the crime itself or from the circumstances surrounding the commission of the crime, that the crime of which the lawyer was convicted is one involving moral turpitude, the Court will enter an order either disbarring or suspending the lawyer. B&PC § 6102(d). State Bar Rules of Proc., Standard 3.2 provides that final conviction of a crime involving moral turpitude shall result in disbarment unless the "most compelling mitigating circumstances clearly predominate." The minimum discipline to be imposed cannot be less than two years' suspension. State Bar Rules of Proc., Standard 3.2.
Conviction of a crime that necessarily involves intent to defraud or intentional dishonesty for the purpose of personal gain establishes moral turpitude on its face. In re Fahey (1973) 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 505 P.2d 1369. For examples of crimes held to constitute crimes involving moral turpitude, see In the Matter of DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737 (harboring a fugitive); In re Chernik (1989) 49 Cal.3d 467, 261 Cal.Rptr. 595, 777 P.2d 631 (tax fraud); In re Utz (1989) 48 Cal.3d 468, 256 Cal.Rptr. 561, 769 P.2d 417 (mail fraud); Chadwick v. State Bar (1989) 49 Cal.3d 103, 260 Cal.Rptr. 538, 776 P.2d 240 (violation of federal securities laws regarding insider trading); In re Rivas (1989) 49 Cal.3d 794, 263 Cal.Rptr. 654, 781 P.2d 946 (perjury and subornation of perjury); In re Ford (1988) 44 Cal.3d 810, 244 Cal.Rptr. 476, 749 P.2d 1331 (grand theft and forgery); In re Conflenti (1981) 29 Cal.3d 120, 172 Cal.Rptr. 203, 624, P.2d 253 (receiving stolen property); Libarian v. State Bar (1952) 38 Cal.2d 328, 239 P.2d 865 (extortion); In re Lee (1988) 47 Cal.3d 471, 253 Cal.Rptr. 570, 764 P.2d 698 (first-degree murder); In re Mostman (1989) 47 Cal.3d 725, 254 Cal.Rptr. 286, 765 P.2d 448 (solicitation of great bodily harm); In the Matter of Lybbert (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 297 (welfare fraud); In re Weber (1976) 16 Cal.3d 578, 128 Cal.Rptr. 434, 546 P.2d 1378 (bribery); In re Leardo (1991) 53 Cal.3d 1, 278 Cal.Rptr. 689, 805 P.2d 948 (possession of controlled substances with intent to distribute); In the Matter of Meza (Review Dept. 1991) 1 Cal. State. Bar. Ct. Rptr. 608, 613 (sex offenses). Moral turpitude may also be inferred based on the facts and circumstances surrounding the commission of a crime. See e.g., In re Grimes (1990) 51 Cal.3d 199, 270 Cal.Rptr. 855, 793 P.2d 61 (knowing and unlawful failure to file tax returns); In re Strick (1987) 43 Cal.3d 644, 238 Cal.Rptr. 397, 738 P.2d 743 (voluntary manslaughter and assault with a deadly weapon); In re Higbie (1972) 6 Cal.3d 562, 99 Cal.Rptr. 865 (conspiracy to smuggle marijuana); In the Matter of Buckley (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 201 (soliciting a lewd act in a public place); In the Matter of Frascinella (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr 543 (exhibiting a replica of a firearm in a threatening manner to cause fear of bodily harm to another); In the Matter of Carr (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 108 (multiple instances of driving while license suspended or revoked, where circumstances revealed lawyer also intoxicated).
B&PC § 6102(c) mandates "summary disbarment" if: (a) an element of the offense that results in a final conviction is the specific intent to deceive, defraud, steal, or make or suborn a false statement, and (b) the offense was committed in the course of the practice of law or in any manner such that a client of the lawyer was a victim. The State Bar Court is charged with the responsibility of making the recommendation of summary disbarment to the Supreme Court, based on whether the aforementioned statutory criteria are met and whether, in its determination, the Supreme Court would order disbarment without consideration of mitigating circumstances. In the Matter of Segall (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 71; but see State Bar Rules of Proc., Standard 3.3 (providing that a "final" felony conviction as defined by B&PC § 6102(c) results in summary disbarment regardless of any mitigating circumstances).
B&PC § 6106 provides for the suspension or disbarment of a lawyer based on the commission of an act involving moral turpitude, dishonesty or corruption, and makes clear that a criminal conviction is not a condition precedent to lawyer discipline by the State Bar.
Lawyers may be sanctioned for conduct during the course of judicial proceedings pursuant to statute, rule, or the court's inherent supervisory power. In addition to the broadly applicable sanctions provisions discussed below, many statutes and rules contain independent sanctions provisions. See, e.g. Cal. Rule of Court 222 (authorizing sanctions for failure to comply with rule regarding mandatory settlement conferences).
Sanctions are never imposed on a lawyer absent notice and an opportunity to be heard as to why sanctions should not be imposed.
California's Civil Discovery Act, Civ. Proc. Code § 2016 et seq. contains a sanctions provision specifically applicable to the misuse of discovery. See Civ. Proc. Code § 2023. Available sanctions under this statute include monetary sanctions, "issue sanctions" (precluding a party guilty of discovery misuse from contesting the issue that was the subject of the violation), "evidence sanctions" (prohibiting a party guilty of discovery misuse from introducing matters in evidence that were the subject of the violation), and in rare circumstances, "terminating sanctions" (such as the dismissal of the lawsuit). Civ. Proc. Code § 2023(b).
Civ. Proc. Code § 177.5 authorizes the imposition of "reasonable monetary sanctions" not in excess of $1,500 for any violation of a lawful court order.
Cal. Rule of Court 227 authorizes the imposition of sanctions for any violation of the Cal. Rules of Court, applicable local rules, and any order of a court.
The California Supreme Court has explained that "every court of record has powers requisite to its proper functioning as an independent constitutional department of government, including the power to punish for contempt [and] to preserve order in the court." Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147-48, 74 Cal.Rptr. 285, 449 P.2d 221 (citations omitted).
The following comments are taken from Karpman & Margolis pg. 5 with certain conforming changes:
Noble v. Sears, Roebuck & Co. (2nd Dist. 1973) 33 Cal.App.3d 654, 109 Cal.Rptr. 269 and Wilhelm v. Pray, Price, Williams & Russell (2nd Dist. 1986) 186 Cal.App.3d 1324, 231 Cal. Rptr. 355 hold that there is no independent civil cause of action for the breach of a disciplinary rule. However, in Mirabito v. Liccardo (1st Dist. 1992) 4 Cal.App.4th 41, 5 Cal.Rptr.2d 571, the court held that the CRPC, together with statutes and general principles relating to other fiduciary relationships, all help to define the fiduciary "duty" a lawyer owes to his or her client. See also Younger v. Solomon (5th Dist. 1974) 38 Cal.App.3d 289, 113 Cal.Rptr. 113, in which the court discussed the subject of improper disclosure of the existence of State Bar disciplinary proceedings in a civil tort action against a lawyer.
A violation of the CRPC cannot be used to prove that a defendant lawyer possessed specific criminal intent, since a violation of the rules can occur without any criminal intent. People v. Stein (5th Dist. 1979) 94 Cal.App.3d 235, 156 Cal.Rptr. 299.
In Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 1086-92, 41 Cal.Rptr.2d 768 the court held that the scope of a lawyer's fiduciary duty may be determined as a matter of law based on the CRPC, and that testimony from a professor of legal ethics to the effect that the defendant violated former CRPC 5-102(A) (1975) was sufficient to establish both the duty and breach elements in an action for breach of fiduciary duty.
Each federal court with jurisdiction in California has adopted its own local rules regarding the standards of conduct and discipline of lawyers admitted to its bar. Prior to the imposition of discipline, a lawyer always will be given an opportunity to show cause why the lawyer should not be suspended or disbarred. See, e.g., FRAP 46(b); ED CA Rule 83-184(b); ND CA Rule 11-6(a).
9th Circuit Court of Appeal
FRAP 46 governs the conduct of lawyers in the Court of Appeal. FRAP 46(b) provides that "[w]hen it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court." FRAP 46(c) provides that a Court of Appeal may "take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court." The Ninth Circuit Court of Appeal Advisory Committee has provided that monetary sanctions may be imposed against a lawyer who: (1) prosecutes a frivolous appeal, (2) "vexatiously and unreasonably increases the cost of litigation by inclusion of unnecessary material in excerpts of record," (3) fails to prosecute an appeal to hearing, (4) fails to comply with the rules regarding form and content of briefs, and (5) violates any order or instruction of the court. The Court of Appeal also retains the inherent power to sanction a lawyer. Golden Eagle Distributing Corp. v. Burroughs Corp (9th Cir. 1987) 809 F.2d 584.
Northern District (San Francisco)
Discipline in the United States District Court for the Northern District of California is governed by ND CA Rule 11. ND CA Rule 11-3(a)(1) requires that members of the bar of the Northern District "[b]e familiar with and comply with the standards of professional conduct required of members of the State Bar of California." ND CA Rule 11-6 governs the imposition of discipline in the Northern District.
ND CA Rule 11-6(b) provides that suspension or disbarment may be imposed on a lawyer if the lawyer has: (a) been suspended or disbarred from practice in any other court, (b) been convicted of a felony in any court, (c) resigned from the bar of any court during the process of an investigation into allegations of misconduct, (d) engaged in conduct unbecoming a member of the court, or (e) violated the standards of professional conduct of the California State Bar. In the Northern District, a lawyer will be suspended from practice immediately upon conviction of a felony. ND CA Rule 11-6(a).
The Northern District may rely on its inherent power to sanction a lawyer for bad-faith conduct, or may sanction a lawyer pursuant to FRCP 11 or 28 U.S.C. § 1927. See ND CA Rule 11-8.
Central District (Los Angeles)
Discipline in the United States District Court for the Central District of California is governed by CD CA Rule 2. CD CA Rule 2.5 adopts the rules of professional conduct of the State Bar of California as the rules governing lawyer conduct in the Central District. CD CA Rule 2.5.2 adds that "[n]o attorney shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice." A lawyer may not be sanctioned pursuant to this provision for making disparaging comments about a district court judge, however, unless those comments pose a clear and present danger to the functioning of the courts. Standing Committee on Discipline of the United States Dist. Ct. v. Yagman (9th Cir. 1995) 55 F.3d 1430.
Upon learning that a member of the bar of the Central District has been suspended or disbarred by any other court, the court "shall immediately impose a like order of suspension or disbarment." CD CA Rule 126.96.36.199. Upon learning that a member of the bar of the court has been suspended or disbarred from practice before any federal or state administrative agency, the Standing Committee (see below) is authorized to initiate disciplinary proceedings against the lawyer in the Central District. CD CA Rule 188.8.131.52.
The Central District maintains a "standing committee on discipline." CD CA Rule 2.6.1. The Standing Committee investigates and prosecutes complaints of unprofessional conduct brought against members of the Central District bar. If the Standing Committee decides that discipline is warranted, it is authorized to file with the Clerk of the Central District a petition for an order to show cause. CD CA Rule 184.108.40.206. The matter is heard by a panel of three judges of the Central District, and is prosecuted by and in the name of the Standing Committee. CD CA Rule 2.6.4. The potential penalties are: (a) private/public reproval, (b) suspension, (c) disbarment, and (d) monetary sanctions. CD CA Rule 2.6.8. Disciplinary proceedings in the Central District are confidential unless otherwise ordered by the Court. CD CA Rule 2.6.5.
Sanctions may be imposed against a lawyer in the Central District for violation of the local rules, CD CA Rule 27.1, for violation of FRCP 11, pursuant to 28 U.S.C. § 1927, or based on the inherent authority of the court. CD CA Rule 27A specifically addresses sanctions for vexatious litigations.
Southern District (San Diego)
Lawyer conduct and discipline in the United States District Court for the Southern District of California is governed by SD CA Rule 83.4 and SD CA Rule 83.5. The Southern District has adopted the standards of professional conduct of the California State Bar. SD CA Rule 83.4(b). The local rules specifically provide, however, that the California standards are not exhaustive, and that the "Code of Professional Responsibility of the [ABA] should be noted." SD CA Rule 83.4(b). Also, "[n]o attorney . . . shall engage in any conduct which degrades or impugns the integrity of the court or in any manner interferes with the administration of justice."
Effective August 18, 1997, lawyers practicing in the Southern District are required to comply with a "civility code." See SD CA Rule 83.4(a).
Discipline in the Southern District is administered in much the same way as in the Central District. The Southern District maintains a Standing Committee that is charged with the investigation and prosecution of allegations of unprofessional conduct. SD CA Rule 83.5(e). In the Southern District, the matter is heard by a single judge "in the same manner as any other civil action or proceeding." Disciplinary investigations and proceedings are confidential unless otherwise ordered by the court.
A lawyer convicted of a felony shall be suspended immediately from practice in the Southern District. SD CA Rule 83.5(b)(2). A lawyer suspended or disbarred from any court of competent jurisdiction shall immediately receive a like punishment from the Southern District. SD CA Rule 83.5(d).
SD CA Rule 83.1 governs the imposition of sanctions in the Southern District. Failure to comply with the applicable federal procedural rules, the local rules of the Southern District, or any court order may be subject to sanctions, including but not limited to monetary sanctions. The court may order that monetary sanctions be paid to the Nonappropriated Fund of the Court. SD CA Rule 83.1(b).
Eastern District (Sacramento)
The United States District Court for the Eastern District of California has adopted the standards of professional conduct of the State Bar of California. ED CA Rule 83-180(e). The local rules further provide that "in the absence of an applicable standard" under California law, the "Model Code of Professional Responsibility of the [ABA] may be considered guidance." ED CA Rule 83-180(e). The local rules also provide that "no attorney . . . shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice." Id.
Discipline in the Eastern District is governed by ED CA Rule 83-184. The rule simply provides that in the event a lawyer "engages in conduct which may warrant discipline or other sanctions," any judge or magistrate judge may either initiate contempt proceedings or "take any other appropriate disciplinary action against the attorney." ED CA Rule 83-184(a). If an attorney has been suspended or disbarred from any other court, has resigned from practice in any other court, or has been convicted of a felony, the lawyer will be subject to suspension or discipline. ED CA Rule 83-184(b).
ED CA Rule 11-110 governs the imposition of monetary sanction in the Eastern District. The rule provides simply that "[f]ailure of counsel . . . to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."
The Supremacy Clause of the U.S. Constitution governs practice and admission to federal courts. Admission to the State Bar does not routinely include entitlement to practice before the federal courts. However, admission to the California Bar is a condition precedent to admission to the federal district and circuit courts in California. It would violate the Supremacy Clause if the State Bar attempted to restrict appearances or participation in federal court. Ex Parte McCue (1930) 211 Cal. 57, 293 P. 47; Cowen v. Calabrese (5th Dist. 1964) 230 Cal.App.2d 870, 41 Cal.Rptr. 441. Admission to a particular federal court’s rolls is subject to the particular court’s rules.
In terms of actual practice, ordinarily the federal court will adhere to the disciplinary sanction imposed by the State Bar Court, and in many instances impose the same period of suspension in disciplinary matters. See Barton v. State Bar (1931) 213 Cal. 186, 2 P.2d 149, and In re Barton (D.C. Cal. 1931) 54 F.2d 810, where the federal court suspended an attorney for a like period on the record of suspension of the State Bar Court. The record of suspension in state court did “not intrinsically disclose any such infirmity” that the federal court should not follow the order of suspension.
The State Bar Court has authority to discipline lawyers for acts occurring in federal court which demonstrate questionable integrity or impugn the integrity of the profession. Geibel v. State Bar (1939) 11 Cal.2d 412, 79 P.2d 1073.
Many federal courts have adopted local rules of practice for attorney conduct in proceedings. Often, their rules incorporate the CRPC and the B&PC sections as additional rules. CD CA Rule 2.5.1; ED CA Rule 180(e); ND CA Rule 1-3(a)(1). Federal courts may establish independent standards for admission. Zambrano v. City of Tustin (9th Cir. 1989) 885 F.2d 1473.
0.3:300 Organization of This Library and the Model Rules
0.4:400 Abbreviations, References and Terminology
Among the key abbreviations in this narrative are:
B&PC: California Business and Professions Code
CRPC: California Rules of Professional Conduct
RRAPL: California State Bar Rules Regulating Admission to Practice Law in California
ND CA: Northern District of California
SD CA: Southern District of California
ED CA: Eastern District of California
CD CA: Central District of California
FRAP: Federal Rules of Appellate Procedure
FRCP: Federal Rules of Civil Procedure
Karpman & Margolis: Diane L. Karpman and Susan L. Margolis, California Lawyer's Guide to Professional Responsibility (Shepard's 1996)
MR: American Bar Association Model Rules of Professional Conduct
DR: Disciplinary Rules of the A.B.A. Code of Professional Responsibility
EC: Ethical Considerations of the A.B.A. Code of Professional Responsibility
A.B.A. Code of Judicial Conduct Canon: ABA Canon
California Code of Judicial Ethics Canon: California Canon
A.B.A. Op.: A.B.A. Committee on Ethics and Professional Responsibility Formal Opinion
L.A. Op.: Los Angeles County Bar Association Formal Ethics Opinion
S.F. Op.: Bar Association of San Francisco Formal Ethics Opinion
O.C. Op.: Orange County Bar Association Formal Ethics Opinion
S.D. Op.: San Diego County Bar Association Formal Ethics Opinion
C.O.P.R.A.C. Op.: California State Bar Committee on Professional Responsibility and Conduct Formal Opinion
This term is not defined in the CRPC or in the B&PC.
This term is not defined in the CRPC or in the B&PC. However, CRPC 3-310(A) defines "disclosure" in describing an attorney's obligations with respect to conflicts of interest. CRPC 3-310(A) states:
"(1) "Disclosure" means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client;"
[See 1.10:103 Definition of a "Firm," infra].
This term is not defined in the CRPC or in the B&PC.
This term is not defined in the CRPC or in the B&PC.
This term is not defined in the CRPC or in the B&PC.
This term is not defined in the CRPC or in the B&PC.
This term is not defined in the CRPC or in the B&PC.
0.4:500 Additional Definitions in CA
B&PC § 6077 provides that the State Bar may discipline any lawyer for a "willful" breach of the CRPC. Thus, CRPC 1-100 provides that a lawyer may be disciplined for a "willful" breach of any of the CRPC.
The following comments are taken from Karpman & Margolis pg.182 with certain conforming changes:
As interpreted by the Supreme Court and the State Bar Court in past decisions, "willfulness" means only that the lawyer knew what he or she was doing or not doing, and that he or she intended to commit the act, or to abstain from committing it. A willful violation, for purposes of State Bar discipline, does not require criminal intent, bad faith, or even knowledge of the provision which is violated.
Willfulness for purposes of the State Bar Act also encompasses a reckless or repeated inattention to the lawyer's duties and the needs of the lawyer's clients. See In the Matter of Respondent G (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175, 179 (lawyer failed to perform in probate matter despite receiving repeated notices); Van Sloten v. State Bar (1989) 48 Cal.3d 921, 258 Cal.Rptr. 235, 771 P.2d 1323 (failure to communicate with clients, combined with inattention to the needs of clients, may be considered willful).
Gross negligence may also warrant discipline. Where fiduciary violations occur as a result of serious and inexcusable lapses in office procedure, they may be deemed "wilful" for purposes of imposition of discipline. Palomo v. State Bar (1984) 36 Cal.3d 785, 795, 205 Cal.Rptr. 834, 685 P.2d 1185 (unauthorized endorsement and deposit into firm payroll account of check made out to client grounds for discipline).
The following comments are taken from Karpman & Margolis page 220 with certain conforming changes:
Moral turpitude is not a concept with a precise definition. The definition most often recited by the Supreme Court is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." In re Craig (1938) 12 Cal.2d 93, 97, 82 P.2d 442. Moral turpitude has also been defined as everything done contrary to justice, honesty, modesty or good morals. The concept or moral turpitude depends on the public morals of the day, In re Higbie (1972) 6 Cal.3d 562, 572, 99 Cal.Rptr. 865, and may therefore vary according to the community or the times, In re Hatch (1937) 10 Cal.2d 147, 151, 73 P.2d 885. The degree of public harm caused by the conduct is also considered. In re Fahey (1973) 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 505 P.2d 1369.