Permanent disbarment moves forward

By Nancy McCarthy
Staff Writer

Permanent disbarment moved a step closer to reality last month when a committee of the State Bar Board of Governors narrowly approved a proposal to forever bar the door to the legal profession to attorneys who commit particularly egregious misconduct. The proposal will go to the full board this summer and, if approved there, will be sent to the Supreme Court.

By 3-2 votes, the committee on regulation, admissions and discipline (RAD) approved three proposed amendments to the California Rules of Court: an extension of the waiting period to petition for reinstatement after disbarment from five to seven years; a requirement that anyone seeking reinstatement take the attorney bar exam; and a list of seven guidelines to be considered in a permanent disbarment case. They include stealing client funds, conviction of a crime of public malfeasance, engaging in the unauthorized practice of law and engaging in conduct “that is so egregious that the member should be permanently disbarred.”

Following the second disbarment last year of Pacific Palisades lawyer Ronald Silverton, the Supreme Court asked the bar to update a previous proposal recommending permanent disbarment as a sanction for attorney misconduct. Silverton, first disbarred in 1975, was denied reinstatement three times before being readmitted on his fourth petition. He then committed misconduct within two years, bar officials said. In addition, two other lawyers recently were disbarred a second time. Chief Trial Counsel Scott Drexel, who heads the bar’s discipline operation, said seven lawyers have been disbarred twice over the years.

In December, the RAD committee sent out for public comment two different approaches to permanent disbarment, one enumerating about a dozen specific crimes, from murder to kidnapping to corruption of the judicial process, as grounds for disbarment. The other listed six factors the State Bar Court could consider in recommending permanent disbarment, including the nature of the misconduct and an attorney’s prior discipline record.

The comments submitted generally did not distinguish between the two approaches and favored permanent disbarment by a 26-15 margin. The debate falls along a philosophical divide that separates those who believe attorneys who commit egregious behavior should be permanently barred from the legal profession from those who believe in the possibility of rehabilitation.

Drexel, who said he favors permanent disbarment, explained that the bar’s discipline process is designed to protect the public and to maintain high professional standards. “But when the conduct goes to the heart of what an attorney should be, when you engage in that kind of conduct, you forfeit your right to be an attorney,” he said. Drexel said he believes few people ever would receive the ultimate sanction. “Our goal was to limit permanent disbarment to the most egregious cases,” he said.

Executive Director Judy Johnson, a former chief trial counsel who also favors permanent disbarment, said she fields numerous calls from members of the public who perceive the bar as too lenient with its miscreant members. “I think the public would be shocked,” she said, if they knew a disbarred attorney could petition for reinstatement after five years, or if they knew seven attorneys have been disbarred twice.

Bar President James Heiting said he believes the current reinstatement standards are rigorous and provide adequate public protection. In a letter to the RAD committee, Heiting said he believes the current process, “with its heavy burden of proving, by clear and convincing evidence, that the petitioner meets all requirements for readmission, including rehabilitation, by ‘overwhelming proof of reform,’ is sufficient and is the desired standard for our State Bar courts and for our State Bar.”

He noted that seven states have a formal permanent disbarment statute, and in eight more states permanent disbarment and resignation are at the court’s discretion. Thirty-three states and the District of Columbia permit reinstatement.

Heiting said that he had “personal experience with the idea of getting close to second-degree murder” when he severely injured the driver of another car in a drunk driving accident in 1986. Had the other driver died, he said, “I would never have had the opportunity to come back here” if permanent disbarment had been required for a second- degree murder conviction.

Former State Bar Court judge and bar prosecutor Joann Robbins, who now defends lawyers charged with misconduct, asked the committee to consider “the human side. These are human beings and they have lives that are changed forever by the State Bar. Permanent disbarment means not only that the door is closed, but that it is locked forever. I believe that is wrong . . . I don’t think anyone should be written off permanently.”

The committee was troubled by the list of felonies that might require permanent disbarment, feeling they cast too wide a net, and voted to eliminate them. They kept a list of misconduct related to the practice of law — including stealing client funds, corruption of the judicial process and activities that involve moral turpitude or egregious misconduct — that could be grounds for permanent disbarment.

“I think of the practice of law as a privilege,” said Los Angeles governor Holly Fujie, who fashioned the compromise. She said any lawyer who engages in the misconduct on the list the committee accepted should lose that privilege.