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Permanent disbarment rule sent to Supreme Court — again

By Nancy McCarthy
Staff Writer

Attorneys who have been disbarred twice will lose their license permanently if the Supreme Court approves a proposal from the State Bar Board of Governors. A stronger proposal, approved by the board in 2006 that would have resulted in permanent disbarment for lawyers who commit particularly egregious misconduct, was dropped. But the board added a requirement that lawyers who seek reinstatement after disbarment or resignation must pass the attorneys’ bar exam.

The measures, which will amend the rules of court and the rules of procedure, were adopted unanimously last month with little discussion.

When the bar sought comment about the proposals, it received only four comments; two offered support, a third expressed support for permanent disbarment and said the new proposals did not go far enough, and the fourth was opposed to permanent disbarment.

The idea of permanently barring the door to the legal profession surfaced in 2005, after Pacific Palisades attorney Ronald Silverton was disbarred a second time. Six other lawyers have been disbarred twice.

At that time, the high court asked the bar to revisit a 1996 permanent disbarment proposal that the court had ordered suspended. The board then approved a list of seven guidelines that could result in the permanent loss of a lawyer’s license, including 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.”

It also recommended that attorneys seeking reinstatement pass the attorneys’ exam. A proposal to extend the waiting period for reinstatement from five years to seven years was dropped.

Last year, the Supreme Court indicated it favored a narrower rule and the proposal was scaled back significantly.

Chief Trial Counsel Scott Drexel, a longtime proponent of permanent disbarment, said the requirement to pass the attorneys’ exam offers a more objective standard for reinstatement than currently exists. Attorneys seeking to regain their license after disbarment or resignation with charges pending need only demonstrate they possess “present learning and ability” in the law, a requirement subject to interpretation. The new requirement offers what Drexel called a “uniform standard” for the bar court to judge applicants for reinstatement.

He suggested the difficulty of the attorneys’ exam could result in fewer requests for reinstatement and thus a reduction in court and trial counsel resources. Eleven attorneys filed reinstatement petitions in 2007 and eight petitions were filed last year.

David Cameron Carr, a San Diego attorney who is president of the Association of Discipline Defense Counsel, said he favors the revised proposals, which support the principal “that the opportunity to meet the high burden of reinstatement should not be unreasonably denied.” Carr had opposed earlier proposals.

In other actions, the board:

  • Unanimously approved proposals to make it more difficult for a lawyer to avoid disbarment by resigning with charges pending. If approved by the Supreme Court, a lawyer who resigns with charges pending must stipulate to misconduct within 60 days of tendering a resignation. If a stipulation cannot be reached with bar prosecutors, the Supreme Court can reject the resignation. The court had expressed concern last year that a number of lawyers appeared to be gaming the system by going through an investigation of charges against them, a trial and a disbarment recommendation, but then resigning at the last minute. Although the bar had wanted lawyers in that position to admit to their misconduct, the court wanted the requirement softened somewhat. It was concerned that a lawyer who disputes the accuracy of the allegations might feel his or her only recourse would be to withdraw the resignation and go to trial. Carr opposed the stipulation requirement, explaining that some members who face charges resign as a result of serious physical or psychological problems rather than contest the charges. The proposal goes to the Supreme Court for approval.
  • Unanimously approved a proposed rule to require lawyers who wish to resign without charges pending to declare, under penalty of perjury, that they have not been convicted of a crime and no criminal investigation or charges are pending against them. The proposal also requires Supreme Court approval.
  • Increased the maximum reimbursement from the Client Security Fund to $100,000 for losses occurring after Jan. 1, 2009. It also eliminated the “marriage penalty” to allow married couples to submit two claims, thus increasing the maximum reimbursement to $200,000. Before the change, a married couple could submit only one claim and the maximum reimbursement was $50,000. The Client Security Fund reimburses clients for losses sustained as a result of their lawyer’s misconduct. Every California lawyer contributes $40 to the fund annually as part of bar dues.
  • Approved a rule authorizing the removal from the Web site of an attorney’s suspension for non-payment of dues under limited circumstances. The suspension must have been one time only, for less than 90 days. Although the suspension will remain on the records maintained by the bar and will be available to people who call for information about the lawyer, it will not appear on the Web. It will be expunged from the records after seven years.
  • Sent out for public comment a proposal to require that an early neutral evaluation conference (ENEC) be held by a State Bar Court judge only if both bar prosecutors and a respondent attorney request such a meeting. Currently, only one side need ask for a conference.

Drexel said that in many cases, an ENEC results in a stipulated disposition of a matter before charges are filed. But when the parties are far apart, he said, such a conference “is rarely more than an empty exercise and simply results in a sometimes significant delay in the filing of the NDC (Notice of Disciplinary Charges).”

The current rule also requires that an ENEC be held within 15 days of a request, but Drexel said the bar court often cannot meet that deadline, sometimes resulting in a delay of as long as six weeks. Sometimes a judge will request additional ENECs, resulting in further delays in filing charges if no agreement is reached.

The proposal is circulating for public comment until May 19.

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