Tightening the rules on early settlement hearings

In the face of opposition by local bar associations and attorneys who defend lawyers charged with misconduct, a committee of the State Bar Board of Governors last month rejected a move to strengthen the ability of bar prosecutors to limit early settlement conferences. Instead, the Committee on Regulation, Admissions and Discipline floated a new proposal placing the responsibility for early settlement in the hands of the respondent attorney and sent it out for another round of public comment. An effort to table the whole idea failed.

The new proposal would require a lawyer who has been notified that he or she will be charged with misconduct to request an early neutral evaluation conference (ENEC) within 21 days of the notification. If the deadline is missed, both the attorney and the bar prosecutor must request an ENEC.

Currently, under Rule 75 of the bar’s rules of procedure, only one party need request an early conference. If a settlement is reached before formal misconduct charges are filed, an attorney can be “privately reproved.” Although the punishment is part of the lawyer’s discipline record, it is withheld from the public. However, the reproval becomes public if a stipulation is reached after charges are filed.

About 30 percent of the matters that receive an early hearing are settled, but the bar’s Office of Chief Trial Counsel has complained that some attorneys use the ENEC as a delaying tactic and a way to game the system. Prosecutors hoped to deny lawyers an early hearing if there is little chance of reaching a stipulated disposition. An ENEC “is not productive in a slam-dunk disbarment or when the lawyer has numerous priors,” said deputy chief trial counsel Patsy Cobb. “We think a lot of times it’s used to delay filing charges.”

Prosecutors recommended that ENECs be permitted only when both sides asked for an early hearing. Such hearings could not be continued or held on multiple days without agreement by both sides.

But David Carr, president of the Association of Discipline Defense Counsel, called the proposed change a bad idea because, he said, early settlement conferences have resolved many cases and saved time and money for all parties. The ENEC “works well, can work even better and should be expanded, not restricted,” he said. Other defense lawyers said there is simply no compelling reason to change the current practice.

State Bar President-elect Howard Miller supported the prosecutors’ recommendation, arguing that they “are the experts. If it’s their proposal, it starts with the presumption that this is what we ought to do.”

Miller pointed out that how board handles the discipline system is being closed watched after it came under fire for not reappointing former chief trial counsel Scott Drexel. In addition, he said the discipline unit is “being flooded with foreclosure complaints” and the bar needs to move swiftly against lawyers who may be preying on a vulnerable public. “Not moving forward is not good for us and not good for the profession,” Miller said.

The discipline committee also tabled a suggestion that the board of governors reaffirm its commitment to aggressive prosecutorial standards after several members questioned why such a move was necessary. Committee chair Richard Frankel proposed the idea after some critics accused the board not reappointing Drexel because he was too tough on errant lawyers.

But public member George Davis said reaffirming the bar’s enforcement policies would do little to change the mind of “any conspiracy theorists. I think we’re reacting to something that wasn’t true and it hurts our credibility.”