California Supreme Court Returns 24 Discipline Cases to the State Bar for Reconsideration

Below is a press release from the State Bar of California, suggesting that that State Bar's believes that the state's high court wants tougher discipline imposed.

 

FOR IMMEDIATE RELEASE

SUPREME COURT RETURNS 24 DISCIPLINE CASES TO THE STATE BAR

Contact: Laura Ernde           415-538-2028                                                    laura.ernde@calbar.ca.gov <mailto:laura.ernde@calbar.ca.gov>

SAN FRANCISCO – The California Supreme Court has returned 24 attorney discipline cases to the State Bar for a second look in an order that suggests the proposed discipline was too lenient. Historically, the Supreme Court approves hundreds of suspensions and disbarments every year on the recommendation of the State Bar, its administrative arm for regulating lawyer admission and professional conduct.

“The Court’s action, while unanticipated, is consistent with the efforts already underway at the State Bar to tighten the professional standards governing California attorneys,” observed State Bar Executive Director/CEO Joe Dunn. “The return of these cases gives us an opportunity to further advance this goal.” 

The cases sent back for review predated new policies by current Chief Trial Counsel Jayne Kim. Early in her term as Acting CTC, Kim began requiring management approval of proposed discipline to ensure consistency, adherence to the discipline standards and maximum public protection. Previous practice did not so rigorously require this.

Bar prosecutors and the State Bar Court follow a set of standards for imposing sanctions against attorneys who are found culpable of professional misconduct. (See Title IV of the Rules of Professional Conduct).

The cases were returned with a June 21, 2012 order stating:
 
“The above-entitled matters are returned to the State Bar for further consideration of the recommended discipline in light of the applicable attorney discipline standards. (In re Silverton (2005) 36 Cal.4th 81, 89-94; see In re Brown (1995) 12 Cal.4th 205, 220.)”

Both cases cited in the order are cases in which the Supreme Court ordered more severe discipline than was initially recommended by the State Bar Court. In the more recent case, the Supreme Court disbarred attorney Silverton, concluding that the State Bar Court’s recommended suspension was inadequate given the primary purpose of disciplinary proceedings to protect the public, the courts, and the legal profession; maintain high professional standards by attorneys; and preserve public confidence in the legal profession.  

“We take the Supreme Court’s citation of the Silverton case very seriously. It is a reminder that our State Bar discipline system must demand the highest professional standards of California attorneys,” Dunn said.

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The State Bar of California is an administrative arm of the California Supreme Court, serving the public and seeking to improve the justice system for more than 80 years. All lawyers practicing law in California must be members of the State Bar. By June 2012, membership reached 237,000.

Laura Ernde
Acting Communications Director
The State Bar of California
180 Howard St., San Francisco, CA 94105
direct: 415-538-2028
mobile: 415-722-8310

Comments

[David Cameron Carr]

This adds a little tarnish to the luster of the backlog elimination that the State Bar has recently been boasting about. But the real impact will be to make the settlement of discipline cases more difficult and increase the workload of the State Bar Court. The recently eliminated backlog will in time return. Expect someone in power to make the argument that more prosecutors and more adjudicators are needed and that State Bar dues must be raised.The system is already straining under the impact of procedural rule changes that have accelerated the discipline process while making the system effectivly more punitive. A notable example is the new cost structure that imposes an even larger penalty on an attorney who takes a discipline case to trial; a trial that lasts more than one day will result in a cost bill of $15,000if the State Bar can prove even one count. It is all part of Discipline Theater, creating the impression that the State Bar is protecting the public by making the system increasingly punitive. The widely cited shibboleth that the purpose of discipline rings increasingly hollow as it becomes more clearly punishment. Quantifying what is sufficient to protect the public is difficult. Punishing bad people is a concept more easily grasped; moreover, its what the public wants. Hence the law enforcement style rhetoric about "zero tolerance" and "a new... sheriff in town" (http://www.calbarjournal.com/June2012/TopHeadlines/TH3.aspx).

[John Steele]

David, thanks. I imagine that's how many of us will interpret this: the drive to completely eliminate the backlog led to shortcuts. A nearly obsessive focus on zero backlog never passed the common sense test. But one can see how it might arise in a bureaucratic or political setting.

[David Cameron Carr]

When NASA announced its "better,faster,cheaper" program under former administrator Dan Goldin, a veteran engineer with many decades experience reportedly said "in the real world, you can have any two of those three."

Those of us on the defense side of the backlog reduction know how the sausage was made. Meritless or marginal investigations were quickly triaged and closed. Discipline charges in remaining matters were hastily drafted and filed, sometimes with poor investigation and analysis. Of course mistakes were made on both sides of the equation. How could there not be mistakes? Discipline defense counsel have suspected for some time that the Supreme Court was closely scrutinizing the results of the backlog reduction project, based on the unusually long time the Supreme Court was taking to act on discipline recommendations, and that State Bar certainly must have noticed that as well.

[anna]

Really? So how does the new US Supreme Court case affect the State Bar? California is the only state that has criminalized it's fines. Under the Southern Union Case, Attorneys now have to have a jury impose those. Just what the hell is the State Bar and Calif Supremes doing? The Supremacy clause no longer applies to Cal. Lawyers? What the hell is the Defense bar for Cal attorneys doing? Someone needs to file a lawsuit prior to an NDC from being served, and raise these constitutional issues under the Canatella case.

[Richard Zitrin]

I agree with John that the backlog elimination made no common sense. It was a band-aid solution that didn't address the many problems that the disciplinary system has. While my perspective is very different than David's and respondents' counsel's, I certainly agree - as I wrote in 3 columns on discipline in CA - that the system is still not working well.

I don't think the new regime will improve it much unless they take the most serious cases and blast away with those and avoid ticky-tack punishments for "technical" violations and purely technical minor trust-account errors.

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