Monday, October 24, 2005
State Bar Panel Delays Action on Permanent Disbarment Rule
By DAVID WATSON, Staff Writer
Facing opposition from the organization’s president, a State Bar committee delayed action Friday in Los Angeles on a proposed rule under which lawyers who commit specified crimes would be disbarred permanently.
Fresno attorney Paul S. Hokokian, a State Bar Board of Governors member who chairs the board’s Committee on Regulation, Admissions and Discipline Oversight, said the panel would continue its discussion of the proposed rule in Los Angeles on Nov. 15. A favorable vote by the panel would permit the proposal to be circulated for public comment for 90 days.
State Bar President James O. Heiting told the committee he believed more work on the proposal is necessary before it is subjected to public scrutiny.
Heiting, who is not a member of the committee, urged that only a “thoroughly vetted work product” be sent out for comment.
“This issue is such an important one that we should not adopt a proposal at this time, but should study the issue thoroughly,” Heiting declared.
Several members of the committee, including board members Jo-Ann W. Grace, Holly J. Fujie, and Danni R. Murphy, joined Heiting in advocating a delay.
Grace is co-publisher of the MetNews. Fujie is an attorney with Buchalter Nemer in Los Angeles, while Murphy is a deputy public defender in Orange County.
When Hokokian asked Heiting whether a delay in acting on the proposal until next month satisfied him, Heiting declared:
“It satisfies me that no action is being taken today.”
State Bar Chief Trial Counsel Scott J. Drexel said that the State Bar staff had resumed work on the proposal at the urging of the state Supreme Court. He explained that a similar proposal in 1996 was withdrawn after the Supreme Court suggested it needed reworking.
The 1996 proposal, Drexel said, called for State Bar Court judges to recommend whether disbarred attorneys should be permitted to seek reinstatement after five years, 10 years, or not at all depending on the severity of their offenses.
The new proposal calls for permanent disbarment for attorneys convicted of any of four categories of criminal offenses: first- or second-degree murder, felonies involving sexual misconduct, felonies involving “physical coercion or substantial intentional damage to person or property,” and malfeasance in public office involving fraud.
Permanent disbarment would also be mandated for lawyers “found culpable” of multiple acts of theft of client funds, intentional corruption of the judicial process, insurance fraud, or unauthorized practice of law after disbarment.
Attorneys who have been reinstated after disbarment would be subject to permanent disbarment if disbarred a second time.
Drexel said one problem with the 1996 proposal was that the discretion it gave to State Bar Court judges could have led to inconsistent application. Specifying the offenses calling for permanent disbarment would allow for more consistency, he said.
Drexel noted that under current rules a disbarred attorney can seek reinstatement after five years. The proposed rule would lengthen that period to seven years.
State Bar records, he said, show that only about a third of the lawyers who seek reinstatement at or near the five-year date are successful, while after seven years a majority succeed in regaining the right to practice.
Processing a reinstatement application before the State Bar Court costs about between $35,000 and $40,000, Drexel said. The fee for the application is $1,600, he said.
“Because of the high degree of failure, we think the expense outweighs the benefit,” Drexel said of the applications brought at about the five-year date.
Drexel said the proposal is based on guidelines for permanent disbarment adopted by the Supreme Court of Louisiana in 2001.
He noted that the proposal is currently formulated as a change to the Rules of Procedure of the State Bar of California, but will likely be recast as proposed amendments to the California Rules of Court.
Heiting questioned the appropriateness of relying on something done in Louisiana.
“There are 48 other states,” he commented, suggesting that how each of them has dealt with the issue should be considered.
He also pointed out that a 1999 study showed that the average time a disbarred lawyer waits before seeking reinstatement was about nine years.
Drexel said that study and the approaches taken by other states had already been reviewed. He estimated that disbarred attorneys seeking reinstatement average 10 to 12 years away from the practice of law, and about 20 percent wait from 15 to 25 years.
He said that each year about 70 lawyers are disbarred and another 90 resign with charges pending against them. Only about seven or eight of them, he estimated, would come under the permanent disbarment rule.
He noted that the proposed rule change would also require disbarred lawyers to retake the bar exam before being reinstated. Current rules require a lawyer seeking reinstatement to demonstrate “present learning and ability” in the law, he pointed out, adding that there are no clear standards for how that should be done.
Requiring bar exam passage would be a method of standardizing that requirement, he said.
Murphy called the list of offenses mandating permanent disbarment “vague and overinclusive.”
“That’s problematic to me, this list as it is.”
The proposal also fails to take into account that an individual convicted of a crime can later be declared factually innocent, Murphy said.
State Bar Executive Director Judy Johnson said the process of crafting precise definitions would be “dicey,” and suggested that any language the committee could come up with would “have to be honed by court decisions rather than wordsmithing.” Citing specific Penal Code sections is impractical, Johnson said, because such citations would not take into account cases in which the conduct occurred in other states or violated federal laws.
Grace questioned whether any disbarment could truly be “permanent.” The state Supreme Court, she suggested, may have the inherent power to reinstate a lawyer if it sees fit.
Johnson said the State Bar’s legal staff would look into the question of whether the current Supreme Court, by exercising its rulemaking power, could limit the power of a future court to grant reinstatement.
Diane Karpman, a Los Angeles attorney who represents lawyers accused of misconduct, said the pressure from the Supreme Court for a proposal from the State Bar “might be an overreaction” to a recent case in which attorney and discipline system critic Ronald R. Silverton was disbarred for a second time. Such cases are rare, she said.
She also warned that depriving disbarred lawyers of the hope of reinstatement could push them into criminal activity instead of encouraging them to rehabilitate themselves.
Hokokian noted that any rule eventually recommended by the State Bar would be subject to Supreme Court review.
“They will tinker with it,” he said.
The panel chairman said it was important to circulate a draft rule so that additional input could be obtained.
But Fujie said the committee would be doing the state’s lawyers and the Supreme Court a “serious disservice” if it sought public comment on a draft rule while it was “in a form in which we even as a board see problems.”
Hokokian and Drexel said that over the next three weeks State Bar staff members will revise the proposal in an effort to address concerns raised by committee members, Heiting, and State Bar Court Presiding Judge Ronald W. Stovitz.
Copyright 2005, Metropolitan News Company