When Must an Attorney Self-Report to the State Bar?
By: James I. Ham © 2017
When does a lawyer have a duty to self-report to the State Bar of California? Most lawyers breathe a sigh of relief when I tell them that there was no self-reporting obligation to the State Bar when a lawyer makes a mistake, such as missing a deadline, failing to spot a conflict of interest among clients, or not having a required fee agreement. While it is true that there is no general rule requiring a lawyer to self-report errors and ethical violations to the State Bar, there are some notable statutory exceptions. Every lawyer should be aware of these exceptions, because failure to report one of these violations can itself serve as a basis for attorney discipline.
A lawyer must self-report to the State Bar, within 30 days, any of eight different events. Seven of the events are specified in California Bus. & Prof. Code § 6068(o). Under Section 6068(o), a lawyer must report the filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity. If a judgment is entered against an attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity, the judgment must also be reported to the State Bar. Courts are separately required to report such incidents to the State Bar within 20 days after entry of a judgment. See Cal. Bus. & Prof. Code § 6086.8.
Sanctions imposed on an attorney must also be self-reported to the State Bar, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000. See Cal. Bus. & Prof. Code § 6068(o)(3). Courts are also required to report such sanctions to the State Bar under Cal. Bus. & Prof. Code § 6086.7(a)(3).
Certain criminal matters also trigger a self-reporting obligation. An attorney must report the bringing of an indictment or information charging a felony against the attorney. In addition, an attorney’s conviction (including a plea of guilty or no contest) of a felony, or of any number of misdemeanors committed in the course of the practice of law which involve improper conduct by an attorney, dishonesty, moral turpitude, and certain conspiracy and solicitation crimes, must be reported by a member to the State Bar. See Cal. Bus. & Prof. Code § 6068(o)(4) & (o)(5).
A member of the bar must also report the imposition of discipline by any other professional or occupational disciplinary agency or licensing board. See Cal. Bus. & Prof. Code § 6068(o)(6). This includes attorneys licensed as medical doctors, engineers, architects, and other business enterprises which have their own licensing and disciplinary procedures.
Finally, an attorney must report the reversal of a judgment that is based in whole or in part upon attorney misconduct, grossly incompetent legal representation or willful misrepresentation. See Cal. Bus. & Prof. Code § 6068(o)(7). Courts are separately required to report modifications or reversals of judgments based on such events. See Cal. Bus. & Prof. Code § 6086.7(a)(1).
Section 6068(o) of the Business and Professions Code expands these reporting requirements to require an attorney to self-report claims and proceedings initiated against any firm of attorneys in which the attorney was a partner at the time of the problem conduct.
An eighth self-reporting obligation applies only to uninsured lawyers. Under Cal. Bus. & Prof. Code § 6086.8(c), an uninsured attorney is required to send a complete written report to the State Bar regarding any settlement, judgment, or arbitration award for fraud, misrepresentation, breach of fiduciary duty, or negligence committed in a professional capacity.
Aside from an attorney’s duty to self-report these matters to the State Bar, the courts, financial institutions, and insurance carriers also have a statutory duty to report certain events to the State Bar. For example, in addition to being required to report attorney sanctions, judgments against attorneys involving misconduct, and reversals of judgments based on attorney misconduct or incompetence, courts are required to report to the State Bar a final order of contempt if the contempt involves “grounds warranting discipline.” See Cal. Bus. & Prof. Code § 6086.7(a)(1).
Other provisions of the Business & Professions Code require financial institutions to report to the State Bar an overdraft in an attorney’s client trust account. See Cal. Bus. & Prof. Code § 6091.1. Attorneys have been disciplined for even small shortfalls in their client trust account. See Matter of Respondent F (1992) 2 Cal. State Bar Ct. Rptr. 17, 25-28 (shortfall of $10.77 and other accounting errors resulted in discipline.)
Finally, malpractice insurance carriers are required to report to the State Bar every claim for damages for fraud, misrepresentation, breach of fiduciary duty, or negligence committed in a professional capacity, within 30 days of the insurance company’s receipt of notice. See Cal. Bus. & Prof. Code § 6068.8(b).
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 firstname.lastname@example.org.