Board OKs permanent disbarment

By Nancy McCarthy
Staff Writer

California attorneys who commit egregious misconduct can be permanently disbarred if the Supreme Court approves a recommendation adopted last month by the State Bar Board of Governors. After wrestling with the idea since last November, the board voted 9-5 to give State Bar Court judges the discretion to permanently lift lawyers’ licenses to practice if their actions fall into one of seven specified categories.

The board also voted to require any lawyer seeking reinstatement to take and pass the bar exam for out-of-state attorneys, but rejected a staff proposal to extend the waiting period to seek reinstatement from five to seven years.

Repeatedly emphasizing that permanent disbarment would be neither mandatory nor automatic, Chief Trial Counsel Scott Drexel described the ultimate ban from practice as “a recognition that the practice of law and the perception of lawyers are central to our system of justice. It goes to the heart of the integrity of law . . . and it goes a long way in making a public statement.”

The proposal would amend the California Rules of Court to permit the bar’s disciplinary court to recommend permanent disbarment if an attorney’s misconduct falls into one of seven categories, including conviction of certain crimes involving the practice of law, corruption of the judicial process, a previous disbarment or resignation with charges pending, or engaging in “a pattern of serious misconduct that is so egregious that the member should be permanently disbarred.”

Bar President James Heiting opposed the proposal, saying existing law protects the public and “there is no need to go farther.” But Santa Clara governor James Scharf favored it, saying the possibility of permanent disbarment gives the State Bar Court increased discretion in making disciplinary recommendations. Summing up many board members’ opinions, Scharf said, “There is symbolic value to be gained in terms of enhancing public perception.”

About 100 lawyers are disbarred every year and another hundred resign with charges pending. Each is entitled to seek reinstatement after five years, and petitioners must meet a burden that includes a prolonged period of rehabilitation and a demonstration of their learning and ability in the law. Between 15 and 20 people petition for reinstatement each year and about half succeed, Drexel said.

Between 1990 and 2005, 71 percent of the lawyers who were reinstated had one or more complaints filed against them. Six have been disbarred twice, between six and 12 resigned after an earlier disbarment or resignation with charges pending and “a significant number” of those who were reinstated were later disciplined without another disbarment, Drexel said. “You’ve got to be like Caesar’s wife,” he said of those seeking reinstatement. “You’ve got to be above reproach.”

The State Bar proposed a permanent disbarment rule to the Supreme Court in 1996, but later delayed its implementation at the court’s request. In the wake of the second disbarment of Pacific Palisades attorney Ronald Silverton in 2004, the court again asked the bar to study the idea and provide it with a recommendation. Silverton was disbarred in 1975 and, after four petitions for reinstatement, won his license back in 1992. Because the bar court found his subsequent misconduct less serious than that which led to the first disbarment, it recommended a suspension rather than disbarment. When Silverton appealed to the Supreme Court, however, it ordered that he be disbarred and asked the bar to come up with new policy.

In November, a board committee sent out for public comment two proposals, and in March sent out further refinements for more comment. Opinion was fairly evenly divided, although every member of the public who commented favored permanent disbarment.

Michael Marcus, a former State Bar Court judge and trustee of the Los Angeles County Bar Association (LACBA), said LACBA “vigorously” opposed the bar’s recommendation. “We should not try to shift policy because we don’t like what Silverton did,” Marcus said. “The burden of proof is extremely heavy and very few people try to gain reinstatement.” He said the Supreme Court has long favored rehabilitation of lawyers and called the idea of permanent disbarment “a radical shift in terms of policy.”

Joanne Robbins, another former bar court judge who now defends lawyers accused of misconduct, also voiced her opposition and asked the board “not to close that door irrevocably.” Robbins said most attorneys in the discipline system are “good people who do bad things” in a crisis.

But Holly Fujie, a governor from Los Angeles, said she was shocked to learn that disbarment is not already permanent. The legal profession has enough problems “in terms of public perception . . . Permanent disbarment is a public trust issue.”

By the same 9-5 vote, the board also voted to require attorneys seeking reinstatement to pass the attorney bar exam. Although opponents felt the requirement is a harsh addition to an already heavy burden, supporters said it offers judges a uniform means and objective standard of measuring a petitioner’s current learning and ability in the law. “If you want to become a lawyer again,” said Jeff Bleich, a governor from San Francisco, “you have to do the same things as everyone else who wants to be a lawyer.”

But the board narrowly voted to continue a 5-year, rather than approve a 7-year, waiting period for those who have not been permanently disbarred to apply for reinstatement. Several board members said there is not enough data to show a longer wait- ing period would make a difference.