Lawyers spend a lot of time and money to become a member of the State Bar of California and earn the privilege of practicing law. Attorneys may not consider the range of burdens attendant to that privilege, at least until they receive a letter from the State Bar asking them to respond to a complaint or investigation.
Naturally, no one likes to dwell on the unpleasant. But some knowledge of how the discipline system operates can help dispel the panic that often sets in when such a letter arrives. Just as importantly, a basic understanding of the discipline system can also counteract the curious lack of seriousness that some lawyers display when confronted a discipline complaint.
A very small percentage of California lawyers are disciplined. In 2015, 485 California lawyers were suspended or disbarred (State Bar Annual Discipline Report 2015, at ii.) That same discipline report also indicates the State Bar received 15,796 new complaints. Most of the work done by the State Bar’s prosecution office, the Office of Chief Trial Counsel (OCTC), consists of evaluating and investigating those complaints, as well as other information that comes to its attention. In addition to complaints, the State Bar evaluates events that must be reported by lawyers (Bus. & Prof. Code § 6068(o)(3)), courts and insurers (Bus. & Prof. Code § 6086.7.) Take note that a failure to self-report under 6068(o)(3) is itself a cause for discipline.
This means that thousands of California lawyers receive letters from the State Bar every year asking for an explanation of their conduct. Over time, it is not unusual for a California lawyer to receive a letter from the State Bar, especially if that lawyer represents real people in practice areas like marital dissolution, personal injury and estate planning. Rather than think of the State Bar as the ethics police, it is more accurately characterized as a government consumer protection agency. However, statistics are very cold comfort when you sit there with an investigation letter in your hands.
OCTC follows a three step procedure when evaluating complaints and other communications regarding possible lawyer misconduct. At the “intake” stage, the information is evaluated by non-attorney “complaint analysts” who operate under the supervision of a small cadre of State Bar lawyers.
They apply a simple test: If the information in this complaint or communication is true, are we interested in prosecuting it? In most cases the answer is “no.” An attorney may never know a complaint was made: Intake closes many matters without contacting the respondent attorney.
Intake complaint analysts will contact a respondent attorney when they can’t understand what the person is complaining about, which happens a lot. They will also contact an attorney if the complaint meets the parameters of their “minor misconduct” program. Many times these types of cases can result in a warning letter instead of discipline, or an agreement in lieu of discipline (ALD), which are both non-disciplinary dispositions, although the ALD can become discipline if not complied with.
Matters deemed more serious are assigned to professional investigators in OCTC’s Enforcement section. Those investigators, like the complaint analysts, are not lawyers. They generally have law enforcement or insurance company experience. And, like the complaint analysts, they are supervised by State Bar lawyers, called Deputy Trial Counsel. OCTC adopted a vertical prosecution model in 2012. The same State Bar lawyer who supervises the investigation will try the case in State Bar Court if the decision is made to prosecute.
Every California lawyer has a statutory duty to cooperate in the investigation of complaints (Bus. & Prof. Code §6068(i).) The statute also provides that constitutional and statutory privileges apply, including the attorney-client privilege. A common mistake in responding to a complaint entails providing confidential information when the client is not the complaining party and has not waived the attorney-client privilege.
Sending a letter to the respondent attorney is generally the first step in the investigation process. State Bar investigators will also interview witnesses and obtain documents, including bank records and files, by subpoena. The timeline for completing an investigation is six months from the initial complaint or communication. The investigator will write a detailed report to the supervising Deputy Trial Counsel. Sometimes that report will make specific recommendations, but the decision to prosecute is the made by the State Bar lawyer. Most matters are closed at the investigation stage, sometimes with a warning letter or ALD.
If the decision is made to prosecute, the Deputy Trial Counsel will send the respondent or respondent’s attorney a letter entitled “Notice of Intent to File Discipline Charges.” Within ten days after the date of that letter, the respondent or counsel must do two things: (1) request a copy of the State Bar investigation file, including any exculpatory evidence; and (2) request an Early Neutral Evaluation Conference (ENEC), a pre-filing settlement conference before a State Bar Court hearing judge.
The State Bar Court is the adjudication arm of the State Bar. There are five Hearing Department judges, two in San Francisco and three in Los Angeles. If the case cannot be settled at the ENEC and charges are filed, a trial will be held within four months. The trial decision can be appealed to the Review Department, a three-judge panel.
The natural question is whether a lawyer who receives a State Bar letter needs to hire his or her own attorney. Full service representation isn’t necessary in every case, but even a brief consultation with an experienced discipline defense lawyer can help provide some peace of mind or avert a potential disaster. Lawyers who do this kind of work can be found at: disciplinedefensecounsel.org.
**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**