Board tightens disciplinary resignation rules

Scott Drexel

Lawyers who face serious disciplinary charges will no longer be able to resign at the last minute in order to avoid disbarment. The State Bar Board of Governors tightened its disciplinary rules last month after the Supreme Court expressed concern about the number of lawyers who appear to be gaming the system by going through an investigation of charges against them, a trial and a disbarment recommendation, but then resigning shortly before the hammer falls.

The new procedure, if approved by the court, will require a lawyer to admit or plead no contest to allegations against him or her and such resignations will formally be called “disciplinary resignations.”

Allowing a lawyer to resign without such an admission “allows the member to hide the nature and extent of his or her misconduct from the public,” said Chief Trial Counsel Scott Drexel, who favored the change. “It also give the impression the State Bar is unfairly protecting the member’s reputation by allowing him or her to resign without any finding that the member has acted dishonestly or unethically.”

The board also approved a possible permanent bar to reinstatement for violating Rule of Court 9.20, which requires some lawyers to notify their clients of their suspension. Failure to do so is grounds for disbarment.

Michael Marcus, a board governor from Los Angeles and former bar court judge, objected to that proposal, which he called Draconian. “The Supreme Court believes in regeneration,” Marcus said. “Anyone can make a mistake and prove they made a mistake and come back in.”

David Carr, president of the Association of Discipline Defense Counsel, objected to the changes as “very punitive” and unfair to respondents. The current process, he said, serves attorneys well by allowing them to resign at the early stages of an investigation “with few collateral consequences.”

A new procedure will instead create an incentive to remain in the discipline system, fighting charges and creating an undue burden on the State Bar Court. “There’s no real justification for changing the procedures,” Carr said.

Drexel said 25 jurisdictions do not permit lawyers to resign but require them to consent to disbarment. Another 13 jurisdictions require that as a condition of resignation, a lawyer must admit to misconduct allegations or acknowledge he or she cannot defend against the charge.

Only 15 jurisdictions, including California, allow members to resign without admitting misconduct.

After approving the amendments, the board rejected the resignations of four lawyers who face disbarment.