What can I be disciplined for?
The State Bar, Office of the Chief Trial Counsel, is a consumer protection agency, and to that end its mission is both focused and far-reaching. Attorneys are held to a higher standard than the general public by the fact that almost any legal transgression can be grounds for professional discipline.
Under Business and Professions Code §§ 6101, 6102, the State Bar receives notice of criminal charges and convictions. Upon notification, and investigation is opened immediately, although there may be little action taken while the case is resolved in plea bargaining or trial.
The State Bar’s main inquiry into its members’ conduct is whether it constitutes moral turpitude per se, or is “other misconduct warranting discipline” in order to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession. Conduct such as multiple convictions for drunk driving as is considered grounds for discipline because a serious substance abuse problem presents the public, and the attorney’s clients, with potential harm.
When can/will the State Bar discipline me?
Although an investigation may be opened promptly, there may be little action that you are aware of until the case has resulted in a conviction or plea of guilty or no contest.
What must I report?
Attorneys are required to self-report to the State Bar of California all felony charges and convictions as well as misdemeanors committed in the practice of law and some misdemeanors committed outside the practice of law. The duty to report felonies and misdemeanors includes the following: (1) the bringing of an indictment or information charging a felony, (2) a verdict of guilty, or a plea of guilty or no contest to felony charge(s), and (3) the conviction on any felony or misdemeanor that is committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or—regardless of whether it was committed in relation to the practice of law—felonies and misdemeanors that involve “improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.”
You must report to the State Bar within 30 days of any such conviction, verdict, or plea. The State Bar has a form for reporting a criminal charge or conviction. That form is available here: http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. You can also report by updating your online State Bar profile at https://www.calbar.ca.gov/Attorneys/MyStateBarProfile.aspx
In addition, Business & Professions Code 6068(o) requires attorneys to self-report to the State Bar of California:
- An entry of judgment in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
- The imposition of judicial sanctions ($1,000 or more);
- The reversal of a judgment based on misconduct, gross incompetence or willful misrepresentation;
- If three or more lawsuits dealing with malpractice issues are filed against him or her in a 12-month period;
- Imposition of discipline by a professional or occupational disciplinary agency or licensing board (such as Bar Associations in other states, the SEC, etc.) (Note: this includes claims against any firm in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has already been reported by the law firm or corporation);
- If not in possession of professional liability insurance, self-report any settlement, judgment, or arbitration award as specified by statute;
- And, when employing a disbarred, suspended or involuntarily enrolled inactive lawyer, an attorney must comply with restrictions and inform the State Bar and clients.
The State Bar provides forms for complying with the above-described requirements, available at http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. For questions, contact the Member Services Center, 1-888-800-3400.
What if I don’t report a conviction or guilty plea?
It behooves you to comply with all of the State Bar’s reporting requirements. The State Bar receives notice of criminal charges and convictions fairly immediately. The State Bar is also notified when a California-licensed attorney is placed in, returned to, or released from inpatient status at the California Rehabilitation Center or its branches, or discharged from the narcotics treatment program.
Although a criminal charge or conviction and the circumstances giving rise to such an outcome are extremely stressful, failure to report them to the State Bar within 30 days will only make matters worse: the State Bar will add a failure to report charge to its case against you.
Am I doomed if I receive a conviction?
Not necessarily—but you might be if you don’t obtain counsel or representation skilled in State Bar discipline.
The State Bar does not ignore all misdemeanors, and not all felonies result in disbarment. The State Bar prosecutes most misdemeanor cases and all felonies. The State Bar first inquiry is whether the elements of the crime constitute moral turpitude. If so, a felony crime usually results in suspension or disbarment and a misdemeanor involving moral turpitude results in an interim suspension pending the outcome of the State Bar process. Conduct not constituting moral turpitude may be considered “other conduct warranting discipline” because of its potential to put the public or the attorney’s clients at risk.
It is a good idea to ask your criminal defense attorney to consult with disciplinary counsel. The State Bar disciplinary system is quite different than criminal trial courts, and one of the biggest mistakes an attorney can make is to respond to a State Bar investigation and prosecution like a defendant in criminal court. For example, the State Bar disciplinary system is much more amenable to respondents who take responsibility for their actions than the criminal justice system is toward defendants. Attorneys often wrongly assume that it shows culpability and is disadvantageous to hire defense counsel when facing the possibility of discipline. In fact, it is almost always worth the expense because the system is so different than is often assumed, and the State Bar generally looks favorably upon attorneys hiring counsel because State Bar defense counsel tends to be efficient and dispassionate.
Finally, the State Bar Lawyer Assistance Program for attorneys who have alcohol, drug, or mental health problems that have led into disciplinary issues is a great resource. Enrollment and successful completion in LAP can greatly reduce an attorney’s suspension or other discipline.