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Board of governors committee seeks input on permanent disbarment

By Nancy McCarthy
Staff Writer

A State Bar Board of Governors committee agreed last month to seek public comment on whether the California Supreme Court should adopt a rule authorizing permanent disbarment. Committee members struggled with both the idea that lawyers could lose their law license permanently and with the guidelines, proposed by the bar’s chief prosecutor, that would warrant such a serious punishment for misconduct.

After nearly three hours of discussion, the Regulation, Admissions & Discipline Oversight (RAD) Committee voted 2-1 to circulate a four-part recommendation that would:

  • Extend the minimum waiting period for reinstatement from five to seven years.
  • Require any attorney seeking reinstatement to pass the attorneys’ bar examination.
  • Authorize the State Bar Court to recommend permanent disbarment and in doing so to consider six factors, including the nature of the misconduct and an attorney’s prior discipline record.
  • Authorize the chief trial counsel to circulate an alternative proposal that enumerates a dozen specific crimes, ranging from murder to kidnapping to corruption of the judicial process, warranting permanent disbarment.

The proposal comes in the form of a new rule of court that the Supreme Court would have to consider and adopt. After a 90-day public comment period ends, the issue will be considered by the full board of governors.

Only seven states have a formal permanent disbarment statute, and in eight more states permanent disbarment and resignation is at the court’s discretion. Thirty-three states and the District of Columbia permit reinstatement. In California, every lawyer who has resigned with charges pending or been disbarred has the right to petition for reinstatement, regardless of the nature of the misconduct.

The issue arose recently in California when, during state Supreme Court proceedings that addressed a possible second disbarment of Pacific Palisades lawyer Ronald Silverton, the justices questioned whether a lawyer who was previously disbarred can be disbarred a second time for misconduct that is less serious than that which led to the first punishment. The court ordered Silverton disbarred a second time and subsequently asked the bar to revisit a 1996 proposal for permanent disbarment that was never approved by the court.

The RAD committee deferred action on a proposal from the bar prosecutor’s office in October after President Jim Heiting said he wanted it “tightened up” and a full discussion of the issue.

Scott Drexel
Drexel
Danni Murphy
Murphy

But some members were troubled by the list of offenses, proposed by chief trial counsel Scott Drexel, that would trigger permanent disbarment, believing they were too broad. Danni Murphy, an Orange County public defender, said courts routinely consider the circumstances surrounding bad acts and therefore enumerating particular crimes is unnecessary. In addition, she said, the list is confusing and raises many questions. Inclusion of convictions for inflicting great bodily harm, for example, presents a problem, because sometimes “serious bodily injury can be very minor,” Murphy said.

“If the conviction is later reduced to a misdemeanor, how does this fit?” she asked. “How would a later expungement affect permanent disbarment? What about a finding of factual innocence or a pardon?”

Drexel said specifying the offenses that could lead to disbarment provides clear guidance to both State Bar Court judges and attorneys. And the types of offenses either show a gross disregard for human life or are related to the practice of law, he said.

“They go to the heart of characteristics attorneys are supposed to have,” Drexel said. “If they intentionally steal from clients or forge documents they submit to the court, even if they are personally rehabilitated, should we, for the protection of the system, allow them to come back and practice law again? My feeling is we should not. They have, through the seriousness of their misconduct, forfeited their right to practice law.”

Several people at the meeting said reinstatement should remain available because most people have the potential for rehabilitation. Public member Dorothy Tucker, a psychologist, said she could not support the notion that “people cannot change,” and Diane Karpman, a defense attorney for lawyers who face discipline, said permanent disbarment is “antithetical to getting someone reinstated.” She called permanent disbarment “is a very radical proposal.”

Drexel said that while rehabilitation is one goal of the bar’s discipline operation, the Supreme Court has placed the highest priority on public protection, followed by maintaining the integrity of the practice of law.

And executive director Judy Johnson, who served as chief trial counsel for six years, said the nature of some attorneys’ crimes cannot be expiated by rehabilitation. “I think the damage they have done to the legal profession and the integrity of the justice system makes a mockery of the discipline system,” Johnson said, adding, “I don’t care if Charles Manson is personally rehabilitated. I don’t want him on the street.”

The deadline for comment on the proposal is March 14. The full text can be found at the bar’s Web site.

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