Introduction
One of the primary purposes of the State Bar is to protect consumers from unethical and/or incompetent
attorneys. This function is mainly delegated to the disciplinary arm of the Bar, which takes complaints,
investigates those complaints that appear to have merit, and prosecutes attorneys for fraudulent or otherwise
unprofessional conduct. Bar dues — long a controversial subject among California lawyers —
support the discipline process, with as much as 80% of dues going to discipline and regulatory related functions.
This article looks briefly at the disciplinary process, from complaint intake to decision, from the
perspective of the State Bar of California’s disciplinary branch. This is not intended as an exhaustive
description of the disciplinary process.
Initiation of a Complaint
The State Bar opens an investigation because of a complaint by a client, another attorney, or a judge.
Investigations may also result from what are called “reportable actions” which may come from banks, which
are required to report to the Bar when an attorney issues a check from his or her client trust account against
insufficient funds (NSF). Reportable actions may also come from insurance companies and from the court.
The most common reasons for complaints made by consumers are:
- The attorney is perceived to not be performing legal services competently
- The attorney fails repeatedly to communicate
- A conflict of interest is believed to exist
- The attorney has misappropriated client funds
- The attorney has failed to turn over a client’s file despite requests (In these
situations, it is common for the attorney trying to take over representation from
former counsel who makes the call to the State Bar.)
Judges will also sometimes complain about lawyers who miss appearances, show up unprepared for court, or who
demonstrate inappropriate conduct and must report when they issue sanctions (other than discovery sanctions)
to an attorney in an amount over $1,000. Attorneys are also required to report to the State Bar when they
are sanctioned in an amount in excess of $1,000 (except for discovery sanctions).
The Complaint Process
Complaints are typically initiated by a phone call to the State Bar hotline. However, a phone call does not
start the process; the Bar requires a signed, written complaint from the complaining witness (CW) before it
will take any action to investigate. A complaint does not have to be submitted on the Bar’s forms although
the Bar provides forms, as well as instructions on filing a complaint on its web site at www.calbar.ca.gov.
Upon receipt of a written complaint, an Intake attorney will decide if the complaint should go directly to
investigations or whether additional information is needed before a determination can be made as to how the
complaint should be handled. Some complaints remain in Intake until it can be determined that a potential
ethical violation has occurred or whether the matter should be closed. During this time, the Bar will
try to obtain more information from the complaining witness or wait for a response from the attorney. Sometimes,
depending upon the attorney’s response, the investigation will conclude and the matter dismissed in Intake.
Note: The most positive thing you can do for yourself, if you ever become the subject of a State Bar complaint,
is to respond swiftly and truthfully to all Bar inquiries, from beginning to end.
Oftentimes there are reasonable explanations for what a client perceives as a problem. For example, writing a
check against insufficient funds might occur because the attorney wrote a settlement check to a client before
the settlement draft is deposited or clears the bank, with a promise from the client, not fulfilled, not to
deposit the check until the settlement draft has had time to clear the attorney’s account. At the initial
stages, an attorney can resolve a complaint by producing documents showing that the claims made by the CW are
not accurate or the CW’s information is unreliable. For example, if the complaint claims that an attorney never
returns phone calls, or that communication is unreliable, documentation of phone calls and letters can be provided.
Note: Prevention is worth a pound of cure. Consider following up significant conversations with clients with
confirming letters. Make notes to the file of calls made and received.
The State Bar has a policy of completing intake on all new cases within sixty days. From intake, the case moves
forward into investigation.
Investigation and Beyond
The State Bar receives 1,000-1,200 written complaints per month. Of those, approximately 25-30% proceed to
investigation. The rest are closed because they don’t state an ethical violation. Sometimes clients are just
unhappy with the result of a case, or there’s a legitimate dispute over fees, which results not in disciplinary
action but a referral to fee arbitration.
The evidentiary standard that the State Bar must satisfy at the disciplinary stage is high: clear and convincing
evidence of conduct that violates the Rules of Professional Conduct or disciplinable sections of the State Bar Act.
Mere negligence in failing to perform legal services competently is insufficient. The State Bar doesn’t file charges
unless it thinks it can prove the case. The attorney accused of misconduct will often be represented by counsel who
is aware of the clear and convincing evidence standard, and aware of other factors that might make the case difficult
to prove. The State bar has to evaluate all extenuating circumstances when deciding whether to file charges.
Note: An attorney accused of misconduct improves his or her chances of exoneration or less severe discipline by
cooperating during the investigation phase of a complaint. An attorney’s cooperation will be taken into account
when the State Bar Court judge is shaping an appropriate form of discipline. Lack of cooperation will also be taken
into account and can result in an independent basis for discipline.
Preparing for Trial
Once the investigation is complete and the State Bar believes it has sufficient evidence to prove by clear and
convincing evidence that an attorney has conducted him or her self in a manner that constitutes a breach of the
attorney’s ethical duties, the State Bar’s Office of the Chief Trial Counsel will attempt to settle the disciplinary
case with the attorney. If settlement cannot be reached, the Office of the Chief Trial Counsel will file a Notice of
Disciplinary Charges and serve it upon the attorney’s membership records address. The case then enters a discovery
phase. During the first 120 days after the service of the Notice of Disciplinary Charges, the parties are permitted to
engage in discovery under the rules and procedures of the Civil Discovery Act. Depositions may be taken. Written discovery
may be propounded and documents exchanged. Subpoenas may also be served on third parties for production of documents.
From this point forward, the trier of fact is the State Bar Court judge. The State Bar Court cannot impose monetary
sanctions for discovery abuses, but it can impose issue and/or evidentiary sanctions. Trial is generally set within
six to eight months of the filing of the notice of disciplinary charges and can last from two hours up to several
weeks. Findings of fact are made by the State Bar Court and a recommendation of discipline is made. The disciplinary
recommendation can range anywhere from private reproval to disbarment or the case may be dismissed with an admonition,
a non-disciplinary recommendation.
Review of Findings
Upon either party’s request, any aspect of the decision of the State Bar Court judge can be reviewed by the review
department of the State Bar. However, when the review department takes a request to review, it does so de novo. The
review department looks at the entire case anew and can raise new issues, including issues that weren’t raised by the
parties. The review department can also alter decisions made by the trial court that neither party asked the review
department to reconsider.
A party dissatisfied with the review department’s decision can petition to the California Supreme Court for review.
If the Supreme Court declines to hear the matter, the review department decision becomes the final decision in the case.
Exacerbating the Problem
A staggering 25-40% of complaints go forward by default, where there’s a failure to cooperate or respond. Its difficult
to know why so many attorneys don’t respond at all, when responding is the most likely way to clarify an issue and resolve
a dispute. Some lawyers accused of misconduct see a letter from the State Bar and find themselves unable to open the letter.
They put it away somewhere, and hope the problem will go away. Sometimes those same non-cooperating lawyers will recover from
denial long enough to try to set aside a default. Others may have mental health or substance abuse issues that prevent them
from participating or responding to the State Bar investigation or Notice of Disciplinary Charges.
Without a lawyer’s input, investigators may rely upon a one-sided statement of the case. In addition, without the attorney’s
participation the court and the State Bar have no evidence of potentially mitigating circumstances, which may reduce the
discipline imposed. Participation by the attorney will work to his or her benefit regarding quick resolution and the discipline
that may be imposed. Those who recognize a problem has occurred and can provide assurances that it won’t happen again, are less
likely to be subjected to severe discipline. The worst thing an accused attorney can do is create evidence in an attempt to
defend against the charges. Fortunately, this is an uncommon occurrence.
Rate of Recidivism
It is very difficult to track the recidivism rate among disciplined attorneys, because complaints made after discipline is
imposed may actually relate to conduct that preceded the discipline. It frequently happens that while an attorney is in discipline
for one matter, another matter comes before the State Bar, resulting in the opening of a new complaint. This much can be said about
recidivism: during a ten-year period from 1997-2007, out of approximately 3,000 attorneys who were prosecuted and received
discipline (either a reproval or higher), only 21% had been disciplined 2 or more times. In other words, approximately 80% were
disciplined only once in that ten-year period. This suggests that people who are disciplined tend not to re-offend – at least
not right way. These numbers do not take into account attorneys who have received new complaints, but have not yet been discipline
based on those complaints.
The Most Complaints
Most complaints are made against solo or small firm practitioners, with up to ten lawyers in the firm. One possible explanation
for this is that larger firms have greater resources, and therefore, more backup systems in place. It is less likely in a larger
firm that a lawyer will not show up to court or file to file a pleading. It is also unlikely in a larger firm that a client’s
settlement check won’t clear the bank. However, it’s worth noting that the State Bar prosecutes complaints against large firm attorneys
in the same proportion to complaints received as it does against solo or small firm attorneys. While some attorneys believe that the
State Bar goes after small firm- attorneys and solo practitioners more than it prosecutes large firms, it is not true. The State Bar’s
work is complaint driven; the Bar doesn’t ‘go after’ anyone unless somebody makes a complaint.
Most Disciplinary Action
The good news is that the vast majority of lawyers will never get into any trouble at all. The total number of active lawyers as
of the writing of this article is 157,788. The total number of lawyers involuntarily not entitled to practice law is about 7,700.
It is comparatively easy to stay out of trouble by maintaining a “clean” practice as well as get out of trouble by cooperating with
Bar inquiries. Those who practice in areas most susceptible to complaints — personal injury, for example — are well advised to
follow stringent law practice management techniques. This is sometimes easier said than done in a solo or small firm — therefore,
should trouble arise, cooperate, cooperate, cooperate.
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