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How the California State Bar Discipline Process Works

Written by: Jerome Fishkin

Reputation Level 6

Ethics

Posted about 3 years ago. Applies to California, 3 helpful votes, 0 comments

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Disciplinary Cases Typically begin with a Client Complaint

The typical State Bar investigation begins with a complaint received from a disgruntled client. Other times, the attorney is required to self report an adverse court action. Criminal convictions, trust account NSF or OD's, and insured malpractice settlements are reported by third parties. Some investigator screens the report and decides whether to make a short inquiry, or whether to take an in depth look and do a formal investigation. Sometimes, the State Bar opens a case on its own accord. You are contacted in writing. You should employ counsel. You should NOT attempt to represent yourself. Even the case number tells an experienced counsel something. How an attorney responds to the very first inquiry can often dictate whether the investigation ends or becomes a full blown, contested trial.

Success is a closed investigation

We prefer to represent the attorney from the outset. We can focus on the real issues and on the practical solutions. We also know what issues to avoid, when possible. We help marshall your evidence, cite the appropriate disciplinary law, and keep the explanation professional. A staff attorney reviews the results of an investigation. If there is no provable case, the investigation ends. Pro per attorneys tend to make rookie mistakes, such as over explaining, copping an attitude, not understanding when a simple apology for an honest mistake can help end the ordeal before it begins, or advising the State Bar of disciplinary errors that otherwise are not self reportable.

Sometimes We Can Do Damage Control

You may get a letter that threatens actual prosecution. You are invited to discuss the case in person. Wake Up! This is an adversary system, and the prosecutor is asking you to agree to the opening offer of discipline, while you are still in pro per. As experienced defense counsel, we sometimes are able to negotiate a nondisciplinary diversion, or a private disciplinary outcome at this stage. If not, we will try to plea bargain within the level authority our client gives us. If not, we will insist on your right to a pre-filing conference with a settlement judge. Once again, sometimes we can settle the matter at this stage. Yes, we are acutely aware that any public charges, and any public discipline, will appear on the State Bar's Membership Records listing for you. Otherwise, the confidential phase of the investigation is ended.

The Disciplinary Prosecution and Trial

Public formal proceedings begin with the filing of formal charges in the State Bar Court. The charges and your formal answer are posted on the State Bar's membership records website. Cases are adversary proceedings, with full discovery and formal rules of evidence, tried to administrative judges. Sometimes it is best to settle. Sometimes you should confess a known error and concentrate on reducing the level of discipline. Sometimes a full court press is your best course. Your career is at stake in an adversary proceeding. You should be represented by somebody whose knowledge and experience is a match for the prosecutor . . . and up to the judge's standards. You can appeal all the way to the Supreme Court. If you are disciplined, you will have various duties. We can help you plan for the problems caused by suspension, flag common problems for you, assist with your probation conditions.

Reciprocal Discipline

If you are disciplined by California, you may have to self report to other jurisdictions where you are admitted. and policies. If we cannot represent you, we can generally find a colleague in that far away jurisdiction to do so. All U S District Courts in California require a self report. Different courts and administrative agencies all have different rules on reporting, reciprocal discipline, and the weight to which California's action is given. We have represented clients in the U S DIstrict Court; the Ninth Circuit Court of Appeals; OED of the U S Patent Office; U S Tax Court.

This is no place for an amateur

We are often asked, won't I look guilty if I employ an attorney? No, you will look professional. This is an adversarial system, and there is a lot of pressure on the prosecutor's office to get high levels of discipline, no matter how low grade the offense. This AVVO article is a summary of the process. We have a complete description at http://www.fishkinlaw.com/CM/Custom/StateBarDiscipline.asp

Federal Discipline too

We have also represented attorneys in investigations at the U S District Court (ND CA); Ninth Circuit; Executive Office for Immigration Review (EOIR); U S Patent Office OED.

Additional Resources

The State Bar of California has its own version of how this process works. It is drafted by the prosecutors. It can be found on the State Bar's website at http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10179 . It should come as no surprise that its focus is on prosecution, not defense.

There are Rules of Procedure in the State Bar Court, along with Rules of Practice. They are often different from customary civil procedure. There are over 20 years of published cases in the California State Bar Court Reporter. If you are unaware of this publication, you are already at a serious disadvantage in trying to represent yourself at the State Bar.

We estimate that there are about 100 published appellate decisions each year, involving not only discipline, but civil duties that attorneys have. We keep up on these. We post summaries of recent ones at http://www.fishkinlaw.com/CM/Custom/WhatsNew.asp

How It Works (Our Long Version)

Cal State Bar Discipline Home Page