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Lawyer misconduct charges will go online

By Nancy McCarthy
Staff Writer

After an exhaustive debate, the board of governors voted 18-4 last month to post on the State Bar Web site disciplinary charges filed against California lawyers. The board turned back an attempt to postpone any action pending further study and rejected opposition to online postings by the majority of those who contacted the bar about the proposal.

The postings, which will be placed on a lawyer’s profile page, will be phased in, beginning with any lawyer newly charged, and will eventually include notices for every California lawyer with a pending disciplinary proceeding — about 700 bar members. The lawyer’s answer to the charges also will be posted.

Chief Trial Counsel Scott Drexel proposed putting charges online as a way to protect potential clients, some of whom have hired lawyers who, unbeknownst to the public, face disciplinary charges. Some, Drexel said, “lost their cases, lost legal fees, lost their legal rights as a result of not knowing if there were charges pending against their lawyer when they hired them.”

He wondered aloud if people “want ready access” to disciplinary information when they hire a lawyer. “I think the answer has to be yes,” he said.

Although such information has been publicly available since 1985, judges, lawyers and members of the public have had to call the bar to learn if a lawyer has a clean record. In order to obtain a copy of any charges, they must send a check to the bar to cover the 50-cents per page charge, and the document is then mailed, a process that can take two weeks.

Opponents of the online posting fretted that innocent lawyers will be unfairly tarnished and claimed that the bar often overcharges offenses, particularly those involving moral turpitude. David Carr, president of the Association of Discipline Defense Counsel, said the Web posting will cause severe “reputation damage” to lawyers who are charged with misconduct, affecting not only potential clients but pending court proceedings.

Carr also accused the bar of “overcharging” moral turpitude, an allegation he said often is not proved.

Defense counsel Diane Karpman, a Los Angeles lawyer, said online posting of charges runs counter to the presumption of innocence, and pointed out that bar prosecutors currently can deactivate a lawyer’s license quickly if they pose an imminent danger to the public. Online posting will be “profoundly destructive” to charged lawyers, Karpman said. “The innocent are totally abandoned by this system. What will the public think when they realize we’ve abandoned the concept (of a presumption of innocence)?”

Both the Los Angeles County and Beverly Hills bar associations unanimously opposed the online posting.

Several board members said they wanted more time to study the idea, first proposed in May, but a delay was voted down. Michael Marcus, a Los Angeles lawyer and former bar court judge, proposed putting lawyers’ criminal convictions and disciplinary offenses from other jurisdictions online, but received no support. Marcus cited the JonBenet Ramsey murder case, in which the child’s parents were suspects for 10 years until cleared last month, as an example of reputations unfairly destroyed. “Once a charge is made, it’s very difficult to undo it,” Marcus said. “Is what we are doing helping the public and helping the administration of justice? Is highlighting (disciplinary charges) really helping our obligations as governors?”

Drexel tried to reassure the bar board that his office does not press charges lightly. Only 10 percent of complaints (which are confidential) lead to charges, and when they are filed, the bar prevails 92 percent of the time. Of the remaining 8 percent, Drexel said some are enrolled in the bar’s Alternative Discipline Program for lawyers with substance abuse or mental health problems, where formal discipline is postponed, and many others who admit to minor misconduct receive a punishment in lieu of formal discipline. In 2006, no attorneys were cleared of all charges, and one was exonerated in 2007 and two in 2008 after a trial on the merits. Seventy decisions have been issued by the State Bar Court so far this year.

Should a lawyer be exonerated, the board agreed he or she will have the option of having the charges removed immediately from the Web site or leaving them online, along with the finding that clears them, for up to 60 days.

The board’s six public members presented a united front that saw the question as a public protection issue. While acknowledging the peril of unfounded charges being posted online, they also emphasized that disciplinary notices already are public. “People who are not connected and don’t know who to call will go to the Web,” said George Davis, a media entrepreneur from Los Angeles. “The people who will be harmed most are those who don’t have access to information.”

“No one wants to see an innocent attorney harmed,” added Richard Rubin, a San Francisco public affairs consultant, “but I don’t want the public harmed.”

The California Medical Board posts accusations filed by the attorney general against doctors, the Commission on Judicial Performance makes public charges against judges along with the judge’s response, and some superior courts make available charges filed against criminal defendants. “You have to ask, given the fact that other learned professions subject (their members) to the same thing, how can we expect an exemption,” said Los Angeles governor Howard Miller.

Bar President Jeff Bleich said he supported the proposal as a public protection measure, and stressed, “Charges are just that. You haven’t been found guilty.”

  • In other action, the board sent out for public comment a proposal to require that lawyers who voluntarily resign from the bar declare that they do not face any criminal investigations or charges and they have not been convicted of a crime. The proposal comes in the wake of attempts by at least five lawyers to resign in the past year after they were charged with or convicted of felonies. The bar had to ask the Supreme Court to vacate its orders accepting the resignations without charges pending.
  • The board also approved discussions with the Supreme Court to change a rule that allows the bar to expunge from its membership records one-time only suspensions for non-payment of bar dues. The rule permits posting the suspension on a lawyer’s profile page for seven years before expungement if certain conditions are met.

    The bar wants to post the suspension for two years, then move the information to its internal rolls for five more years, after which it would be permanently expunged.

    “This is like giving a mulligan to lawyers,” said Starr Babcock, senior executive for member services. “Why not give lawyers this benefit? It doesn’t relate to competence or discipline.”

    Bleich noted that information such as convictions and malpractice judgments is not posted online, but “if you pay your dues late one time, it stays there forever. I don’t think it protects the public, but it antagonizes our members.”

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