Sunday, June 27, 2010

Default Disbarment Proposed

The California Bar Journal reports proposed rule changes governing, among other things, attorneys who fail to participate in the disciplinary process:

Attorneys who do not participate in disciplinary proceedings against them could be subject to automatic disbarment under a proposal floated last month by the State Bar’s chief prosecutor. At the same time, the State Bar Court suggested a slightly different proposal that ultimately would hasten disbarment recommendations for lawyers who default. The bar board of governors sent out both proposals last month for input from interested parties.

They were part of a group of suggestions designed to streamline and simplify disciplinary procedures by both the prosecutor’s office and the court as well as to bring bar standards in line with case law. The Supreme Court has explicitly criticized the default procedure.

In his proposal, interim Chief Trial Counsel Russell Weiner wrote that disbarment would be imposed in default proceedings “unless the offense is so minimal in severity that imposing disbarment would be manifestly unjust and in those cases the discipline shall be at the high end of the applicable standard.”

Weiner also recommended separately that default should be categorized as a separate “aggravating circumstance” to be considered by a bar court judge in determining the level of discipline.

The bar court proposes to speed up disbarment in default cases rather than making it automatic. Currently, the road from default to disbarment can take many months — the bar attorney must file motions, the respondent can reply and a hearing may be held before the judge rules. Accused lawyers can go through two or three default proceedings before the hammer falls.

Under the new proposal, once the default is entered, the attorney will be placed on inactive status. If he or she does not move to set aside the default within a specified amount of time, bar lawyers can petition for disbarment.

State Bar Court Presiding Judge JoAnn Remke said the court proposes eight substantive changes that focus on two issues in addition to default — the discovery process and rules of evidence.

The court’s proposal requires a mandatory exchange of discovery modeled after the federal Rules of Civil Procedure and the process used by the Commission on Judicial Performance. The court could permit limited discovery and failure to disclose any required information would preclude its admissibility at trial.

The evidence standard would follow the Administrative Procedure Act, which allows only relevant and reliable evidence to be admitted. The standard currently is used by state agencies that oversee professional licenses, including dentists, engineers, physicians and pharmacists.

The chief prosecutor’s suggestions include adding or amending mitigating and aggravating factors, clarifications of suspension standards, and spells out the punishment for offenses involving entrusted funds or for lawyers who have sex with a client.

Although there is a so-called “three strikes” standard in discipline cases that requires disbarment on the third discipline “unless the most compelling mitigating circumstances clearly predominate.” Weiner said the courts have created four exceptions. He proposes requiring disbarment if:

  • the attorney has two discrete prior disciplines;
  • the prior discipline must have been “sufficiently serious”; and
  • the current misconduct must be serious enough to justify an actual suspension in the absence of prior discipline or there is actual harm to the client.

The recommendation also eliminates the “most compelling mitigating circumstances” escape clause.

Several board members expressed opposition or concern about a proposal to consider a lawyer’s refusal to acknowledge the wrongful nature of his or her conduct as an aggravating factor. Ventura County governor Michael Tenenbaum said an acknowledgement of wrongdoing should be a mitigating factor but the converse should not be the case.

Young lawyer representative Micha Liberty said respondents “should be able to defend themselves,” and former State Bar Court Judge Michael Marcus, now a board member representing Los Angeles, said a court should not consider it aggravating when “a person is asserting his or her rights.”

Weiner explained that mitigation and aggravation are considered only after an attorney has been found culpable of wrongdoing and an “unreasonable insistence” that a lawyer has done nothing wrong could trigger an aggravating factor. “It’s very important,” he said, “that they give some recognition that what they did is wrong.”

(Mike Frisch)

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