Online charges catch the good and the bad

By Diane Karpman

Karpman

A sea change in the State Bar disciplinary system was approved by the board of governors last month, although both the Los Angeles County and Beverly Hills bar associations were adamantly opposed. The action permits the Office of the Chief Trial Counsel (OCTC) to link unproven allegations to a lawyer’s official State Bar Web page.

Take a deep breath. This doesn’t mean that any cranky client’s letter to the bar will be posted. Many of those initial letters are internally resolved by the bar with little if any lawyer involvement. Some letters simply shout “deranged” or present issues beyond the province of the State Bar. When a “Notice of Disciplinary Charges” is filed in State Bar Court, it becomes public record. Notices have been available to the public in person or by mail for years, but were not posted on the World Wide Web.

Giving wholesale publicity to these allegations presents substantial problems. Some problems are recognized by OCTC. For example, they will include a disclaimer that everyone is “innocent” until proven guilty, and they will also post the attorney’s answer. Every day, we are tasked with explaining the presumption of innocence inherent in Anglo-American jurisprudential law. I wonder if the public will believe our explanations when we broadcast unproven allegations against each other on the official Web site.

Another problem involves the duty of confidentiality owed to all clients. A client who complains against a lawyer is subject to the self-defense exception, (Evidence Code §958). In an attorney-client dispute, the client is said to have waived confidentiality. But sometimes these notices involve non-complaining clients, and their information may be on the posted notice or answer. Consumers justifiably expect confidentiality. They may be shocked to find their legal stuff bandied about in a notice on the web.

According to the OCTC, only 9 percent of the charged lawyers are exonerated, but what happens to them during the years of the trial process? Reputation is a lawyer’s only capital, and mere accusations can be devastating to an attorney’s career. The OCTC maintains that the public’s right to know trumps their obligations to protect the innocent.

Prosecutors have a unique position in our profession, and “while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States (1935) 295 U.S. 78, 88.

Publication of the notice on the web is critical for an accused attorney to factor into a decision to settle with the bar. Some may decide that trial is the only way to achieve vindication. But, consider that a multi-day trial in the State Bar Court results in disciplinary costs imposed on the lawyer of $11,107.

So it seems that we are going to have a sort of disciplinary drift net fishing system, and both the guilty and innocent will be caught.

• Legal ethics expert Diane Karpman can be reached at 310/887-3900 or at karpethics@aol.com.