Disciplinary probation has two purposes

by Scott Drexel

As even casual readers of the "discipline imposed" columns in the California Bar Journal are undoubtedly aware, the majority of attorneys who are disciplined in California are placed on probation and are required to comply with probation conditions for a period of time ranging from one to five years or more.

California attorneys have been subject to disciplinary probation by Supreme Court order since the late 1970s. In 1986, the legislature adopted Business & Professions Code §6093, which specifically authorizes the imposition of probation conditions and provides for the expedited revocation of that probation in the event of a violation of those conditions.

The purpose of a probationary period is two-fold. First, it enables the State Bar to impose probation conditions that address, and hopefully correct, the underlying cause of the attorney's misconduct. For instance, if the attorney has a problem of drug or alcohol dependence, the bar can require the attorney to enroll in a drug or alcohol rehabilitation program and be subject to random or periodic testing. Similarly, if the attorney has a psychiatric or psychological problem, the State Bar Court can recommend imposition of a probation condition requiring the attorney to seek mental health treatment.

Second, imposition of a probationary period permits the bar to temporarily monitor the activities of an attorney to ensure that he or she has learned from the past misconduct and that he or she is now complying with the duties and obligations of the legal profession.

Certain conditions of probation are included in almost all cases. The disciplined attorney is often required to be actually suspended during the initial portion of the probationary period, with the period of actual suspension ranging from 30 days to five years. The Supreme Court may order that the period of actual suspension will continue until the attorney performs a specified act, such as payment of restitution to one or more clients.

The attorney is specifically required to comply with the Rules of Professional Conduct and with the State Bar Act during the period of his or her probation and usually is required to submit quarterly probation reports to the probation unit of the Office of the Chief Trial Counsel, attesting to his or her compliance with the probation conditions.

A probation monitor may be assigned to periodically meet with the disciplined attorney and to more closely monitor the attorney's performance on probation. The attorney usually is ordered to fully and truthfully respond to any inquiries of the probation monitor or the probation unit regarding the attorney's compliance with the probation conditions.

Additionally, the attorney is required to notify both the probation unit and the bar's membership records office of any change in his or her address or telephone number within 10 days of the change.

Finally, the disciplined attorney is required to attend State Bar ethics school and to pass the test given at the end of that course. The attorney usually has one year within which to attend ethics school.

Other terms

While these are the typical conditions of probation, additional probationary terms can be imposed depending upon the nature of the attorney's underlying misconduct. As previously indicated, rehabilitation for substance abuse or treatment for mental health problems can be required. If the attorney's misconduct involved the misappropriation or mishandling of client funds, the attorney can be ordered to attend the bar's client trust accounting school and/or to have his or her books and accounting records periodically examined by a certified public accountant to ensure that funds are being properly handled.

Disciplined attorneys also can be required to attend MCLE courses in specified topics, such as law office management or attorney/client relations, and may be required to develop a written law office management plan that must be submitted to the probation unit or the attorney's probation monitor for approval.

Violation of any of these conditions of probation can result in the filing of a motion to revoke the probation and to impose an additional period of actual suspension. The probation revocation proceeding is expedited and the Office of the Chief Trial Counsel need only prove the probation violation by a preponderance of the evidence. Moreover, if the State Bar Court finds that the attorney has violated probation, B&P Code §6007(d) allows the court to immediately enroll the attorney as an inactive member and prohibit him or her from practicing law pending Supreme Court action on the probation violation.