Lawyers can avoid discipline by reporting adverse actions or events

By Scott Drexel
Chief Trial Counsel

Drexel

As the administrative arm of the California Supreme Court in matters relating to the admission and discipline of attorneys, the State Bar’s Office of the Chief Trial Counsel (OCTC) is charged with the investigation and prosecution of complaints against California attorneys. The State Bar Court is responsible for the adjudication of formal disciplinary proceedings filed by the OCTC against State Bar members. The overriding purpose of these investigations and proceedings is the protection of the public, the maintenance of high standards of professional conduct among members and the preservation of public confidence in the administration of justice. While the significant majority of inquiries and investigations of members are initiated by a client complaint, OCTC receives information about potential misconduct from many different sources.

The legislature has demonstrated its desire to ensure that the State Bar learns as soon as possible about the actual misconduct of attorneys and about conduct that may simply be a precursor or indicator of the possibility or likelihood of future misconduct.

In that regard, the legislature requires courts to notify the State Bar of numerous events involving California attorneys, including contempt orders that may involve grounds for discipline; the modification or reversal of a judgment based on attorney misconduct; the imposition of judicial sanctions of $1,000 or more against an attorney, except for sanctions imposed for failure to make discovery; and the entry of a judgment against an attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity. (Bus. & Prof. Code, §§6086.7 and 6086.8.)

In addition, financial institutions are required to notify the State Bar whenever an insufficiently funded check is drawn against a client trust account (Bus. & Prof. Code, §6091.1.), and insurers must notify the bar of claims or actions for damages against attorneys for malpractice (Bus. & Prof. Code, §6086.8.).

Most important, the legislature has imposed self-reporting requirements on State Bar members themselves. Business and Professions Code §6068 sets forth a lengthy list of the duties of attorneys admitted to the practice of law in California. Section 6068(o) imposes upon members the duty to report a variety of adverse events or actions against the member to the State Bar.

Those self-reporting requirements are as follows:

• the filing of three or more lawsuits within a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity;
• the entry of a judgment against the attorney for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
• the imposition of $1,000 or more in judicial sanctions against the attorney, except sanctions imposed for the failure to make discovery;
• the bringing of an indictment or information charging the member with a felony;
• the conviction of the attorney of a felony or a misdemeanor committed in the course of the practice of law or in a manner in which a client of the attorney was the victim;
• the imposition of discipline against the attorney by a professional or occupational disciplinary agency; and
• reversal of a judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation or willful misrepresentation by the attorney.

While the occurrence of some of these events may justify the imposition of discipline upon the attorney, in other cases (such as the imposition of judicial sanctions) the event may be an isolated incident that is unlikely to be repeated, may reflect potential future problems or, in the worst cases, may be part of a pattern of misconduct by the attorney that needs to be dealt with as soon as possible.

In order to ensure that State Bar members report the occurrence of any of these events, the legislature has made the failure of the attorney to self-report within 30 days a separate and additional ground for the imposition of discipline. (Bus. & Prof. Code, §§6068, subd. (o)(10) and 6103.) We have had cases in which the member was not disciplined for the event itself (such as the imposition of judicial sanctions) but was disciplined for his or her failure to report those sanctions to the State Bar.