An Overview of State Bar Court Procedure*

By: James I. Ham © 2017

 

In many states, attorney discipline is adjudicated by volunteer boards or by courts or State Bar associations which appoint referees or hearing panels to make recommendations in individual cases. California, in contrast, has a permanent prosecutor’s office – the Office of Chief Trial Counsel (“OCTC”) – and a full time professional State Bar Court comprised of five Hearing Department trial judges (three in Los Angeles and two in San Francisco) and a three judge appellate court, called the Review Department, which hear cases and make discipline recommendations to the California Supreme Court.[1] See Cal. Bus. & Prof. Code §§ 6079.1 & 6086.65. Except in more minor cases of reproval, the Supreme Court is the final arbiter of formal attorney discipline in California and is the Court that imposes suspension from practice or disbarment upon an attorney. See Cal. Bus. & Prof. Code § 6078. Constitutionally, the California State Bar is the administrative arm of the Supreme Court and a judicial branch agency.

This article explores the procedures and anatomy of a State Bar Court proceeding against an attorney (called a Respondent) in California.

Pre-Filing Investigation and Initiation of a Notice of Disciplinary Charges

State Bar proceedings against lawyers are typically initiated by the filing of a complaint by a member of the public or another attorney (the “complaining witness”). Matters can also be referred to OCTC for investigation by the civil and criminal courts, and by the Bar of another jurisdiction. OCTC can also independently open an investigation into attorney misconduct based on information learned from anonymous sources, news reports, court decisions, or other information, regardless of how it comes to the attention of the prosecutor’s office.

Not all complaints result in the opening of an investigation. In fact, a high percentage of complaints reflect on their face that no ethical or disciplinary issue is presented. For example, the complainant may be disgruntled with the result of a matter, or the complaint may be a simple fee dispute not involving ethical issues. In such instances, OCTC may choose to simply notify the complainant that no investigation will be opened, and the attorney is never notified that a complaint has been received. Until such time as a determination is made that probable cause exists to bring a disciplinary charge, the California State Bar treats the complaint as confidential.

Once a State Bar investigation is opened, staff investigators will contact the respondent attorney, typically in writing. The investigation letter summarizes the allegations made by the complaining witness, identifies other related ethics issues that the investigator has detected, and asks the attorney respondent for his or her written response, including supporting documentation, usually within two weeks. Extensions of time to respond can be granted on a showing of good cause when additional time is needed to respond to the allegations of the complaint.

Attorneys have a duty to cooperate and participate in any disciplinary investigation. See Cal. Bus. & Prof. Code Section 6068(i). However, this duty does not require an attorney to waive any constitutional or statutory privilege or to comply with a request for information or other matters within an unreasonable period of time in light of the time constraints of the attorney’s practice. Id. The exercise of any constitutional or statutory privilege may not be used against the attorney in any disciplinary proceeding. Id.

If the investigation into the alleged misconduct is not satisfactorily resolved during the investigative phase and unless the complaint is closed for insufficient facts of a disciplinary violation, OCTC will serve the respondent with a Notice of Intent to File a Notice of Disciplinary Charges. At this point, and before the filing of any disciplinary charges, the respondent attorney is advised of the right to request an Early Neutral Evaluation Conference (“ENEC”). See Rule 5.30, Rules of Procedure of the State Bar of California. A party has 10 days from the date of service of the Notice of Intent to request the ENEC. Failure to request a conference within that time period is deemed a waiver of the right to request a conference. Id.

According to the State Bar Rules of Procedure, the ENEC is to be conducted within approximately 15 days of the request for an ENEC. Id. Prior to the ENEC, OCTC is required to submit a copy of the draft Notice of Disciplinary Charges or other written summary to the judge that includes the rules and statutes alleged to have been violated by the attorney, a summary of the facts supporting each violation, and OCTC’s settlement position. See Rule 5.30(C). The respondent also has the opportunity—and is wise to take advantage of it—to submit an ENEC brief to the judge.

At the ENEC, the judge will give the parties an oral evaluation of the facts and charges and the potential for imposing discipline. The ENEC is an opportunity for the parties to receive input from a State Bar Court judge as to how that judge has evaluated the complaint and the prospective charges. In order for the ENEC to be effective, both parties must be willing to give credit to the judicial evaluation of the ENEC judge.

If the parties are able to reach a settlement, various results may occur: OCTC may agree to refrain from pursuing the matter; a disposition short of formal disciplinary charges may be negotiated[2]; a partial stipulation may be prepared; or a full stipulation as to facts and disposition may be prepared and signed by the parties, and submitted to the ENEC judge for approval. See Rule 5.30(B). Unless otherwise stipulated, the ENEC judge cannot be the trial judge in a later proceeding involving the same facts. See Rule 5.30(E).

Initiation of Complaint

If a case does not settle at the ENEC, then OCTC files and serves on the respondent a Notice of Disciplinary Charges (“NDC”). The respondent has 20 days to answer the NDC unless the time to respond is extended by Court order or stipulation. Rule 5.43(A), Rules of Procedure. Demurrers and motions for further particulars are not allowed. Id.

Formal proceedings in State Bar Court are governed by the Rules of Procedure of the State Bar of California and the Rules of Practice of the State Bar Court. Current versions of the rules of procedure and rules of practice can be found on the California State Bar Court’s website.

Rule 5.124(C) of the Rules of Procedure[3] allows an NDC to be dismissed without prejudice by OCTC based upon insufficient or unavailable evidence, or in the furtherance of justice. An NDC may also be dismissed without prejudice for defective service or if the initial proceeding does not state a disciplinable offense or give sufficient notice of the charges. Id. Unless otherwise ordered, written motions are submitted without hearing. See Rule 5.45(D). A State Bar proceeding is also subject to abatement under appropriate circumstances. The Court may consider any relevant factor to determine whether a proceeding should be abated in whole or in part. See Rule 5.50(B).

Discovery

Discovery is limited in California State Bar Court proceedings. The Rules of Procedure provide for a mutual exchange of discoverable information, triggered by a written request served on the other party within 10 days after service of the answer to the NDC. See Rule 5.65. Depositions and other forms of discovery, such as interrogatories or requests for admission, are not permitted without prior Court order. See Rule 5.61.

The Office of Chief Trial counsel typically produces its entire unprivileged investigation file, which in the usual case consists of the complaining witness’s original State Bar complaint, correspondence to and from the Office of Chief Trial Counsel in response to its investigation letters, documents obtained from the complaining witness, the respondent and third parties including from the courts, and interview memoranda prepared by State Bar investigators, except for work product material.

Timelines

State law establishes benchmarks for the speed of complaint resolution. Investigations are supposed to be closed, or the investigation completed, within six months of the receipt of a complaint or 12 months in the case of a complex matter. See Bus. & Prof. Code Section 6094.5. Section 6140.2 calls for the filing of disciplinary charges within six months of receipt of the complaint. Cases are set for trial approximately 125 days after filing and service of the NDC. See Rule 5.102(C). However, these limitations are not jurisdictional, and currently, revisions of these deadlines are being suggested by some in State Bar management.

Trials

The respondent has a right to fair, adequate, and reasonable notice of the charges, and a fair, adequate, and reasonable opportunity to defend against the charges by the introduction of evidence, to receive from OCTC all exculpatory evidence (but not mitigating evidence), to be represented by counsel if respondent can afford to retained counsel, to examine and cross-examine witnesses, to exercise his or her constitutional rights, and to issue subpoenas for the attendance of witnesses and for the production of books and papers. See Cal. Bus. & Prof. Code § 6084.

The rules of procedure encourage parties to reach pretrial stipulations of fact and admissibility of documents. See Rule 5.553. The parties are required to file pre-trial conference statements ten days before the pre-trial conference. See Rule 5.101(B). An in-person pre-trial conference is typically held ten days to two weeks prior to trial.

Trials are conducted in the Hearing Department of the State Bar Court in front of one of five fulltime, professional Hearing Department judges. Los Angeles based judges typically hear cases brought in Los Angeles while San Francisco based judges hear cases brought in San Francisco; however, a judge from either location may be assigned to hear a particular case.

OCTC carries the burden of proof at trial and must establish its case by clear and convincing evidence to a reasonable certainty. See Rule 5.103.

Rules of Evidence

The Respondent has the right to call and cross-examine witnesses and introduce documents at trial. The State Bar court relies on relaxed rules of evidence similar to those utilized in other administrative proceedings. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence must be admitted “if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in a civil action.” See Rule 5.104(C). Hearsay may be used for the purpose of supplementing and explaining other evidence, but timely objection will not be sufficient in itself to support a finding unless it would be admissible over objection in a civil action. See Rule 5.104(D).

Decisions and Appeals

After a disciplinary case is tried in the Hearing Department and the case taken under submission, the court has 90 days to prepare written findings and a discipline recommendation. Either party has 60 days after the filing of the decision to appeal the decision to the Review Department. See Cal. Bus. & Prof. Code § 6083. The burden is upon the petitioner to show that the decision is erroneous or unlawful. The Review Department reviews the recommendation de novo, but gives great weight to the credibility determinations of the Hearing Department judge. See Cal. Bus. & Prof. Code § 6086.65(c); Rule 5.155; California Rules of Court, Rule 9.12.

The recommendation of the Review Department may be appealed to the Supreme Court by petition for writ of review. CRC 9.13 et seq. With a few notable exceptions, such writs are very rarely granted by the Supreme Court, which has, for the most part, delegated this function to the State Bar Court.

[1] Two of the five trial judges are appointed by the California Legislature (one by the Speaker of the Assembly and the other by Senate Rules Committee President Pro Tem), one by the Governor, and two by the Supreme Court. The three Review Department judges are appointed by the Supreme Court.

[2] Many types of non-disciplinary dispositions are available in California State Bar investigations. OCTC may issue a “warning” letter, or a “directional” letter, each of which express the view that a violation of one or more of the disciplinary rules has occurred, but that formal discipline will not be sought. The Rules of Procedure also contemplate more formal non-disciplinary options, including a formal Admonition, or an Agreement in Lieu of Discipline. Additionally, the ENEC is typically the last chance to resolve a complaint for a confidential private reproval, which does constitute formal discipline, but which is treated by the State Bar as confidential so long as it is finalized prior to the filing of the Notice of Disciplinary Charges, which converts the proceeding from a confidential investigatory proceeding into a formal, public disciplinary proceeding.

[3] All further references to Rules, unless otherwise noted, are to the Rules of Procedure of the State Bar of California.

*This article was co-authored with Ellen A. Pansky, Esq. and first appeared in the State Bar of California’s Journal California Litigation, Volume 29, No. 2 (2016).

Jim Ham practices law in Glendale, California. He has handled thousands of State Bar investigations and inquiries, and has achieved notable trial success defending respondents in State Bar prosecutions. His practice focuses on State Bar disciplinary defense and admissions matters, and regulatory and legal ethics compliance for lawyers. Jim was a Commissioner of the State Bar’s Commission on the Revision of the Rules of Professional Conduct which completed its work in 2017 and proposed to the California Supreme Court a revised set of rules of professional conduct for attorneys. Jim is also active in the Association of Professional Responsibility lawyers, where he acts as Chair of the Association’s Public Statements Committee. Jim has also served for decades on the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee, and has been a long-time member of the ABA Center for Professional Responsibility. He can be contacted at jham@hamlawoffice.com.