Wednesday, November 16, 2005
Rule on Permanent Disbarment to Be Circulated for Comment
By DAVID WATSON, Staff Writer
A State Bar Board of Governors committee voted yesterday to circulate for public comment a proposed rule under which State Bar Court judges could recommend permanent disbarment for lawyers guilty of repeated or especially serious misconduct.
But the board’s Regulation, Admissions and Discipline Oversight Committee, which last month in Los Angeles deferred action on the proposal, could not agree on a description of the misconduct which would warrant denying a disbarred lawyer the right to seek reinstatement.
Instead, the panel voted to seek comment on two different versions of a permanent disbarment rule: one with a “generic” description of the guidelines State Bar Court judges are to follow in making their recommendations and another with a “laundry list” of specific crimes and other types of misconduct.
The draft rule itself will only list factors the discipline judges should consider, such as the nature of the misconduct and any aggravating or mitigating circumstances.
The list of 12 specific types of misconduct, ranging from murder to unauthorized practice of law while disbarred or suspended, will be relegated to a comment section of the proposal. Lawyers and other members of the public will be asked, as part of the 90-day public comment process, to say whether they think such a list is necessary and if so whether the list recommended by State Bar Chief Trial Counsel Scott J. Drexel is the right list.
Drexel and State Bar Executive Director Judy Johnson told the members of the RAD panel that the impetus for a permanent disbarment rule came from the state Supreme Court, citing the case of attorney and discipline system critic Ronald R. Silverton.
Silverton was disbarred in 1975 and after winning a fourth bid for reinstatement in 1992 was disciplined for entering into unconscionable fee agreements. The State Bar did not seek Silverton’s disbarment for that misconduct, but in June the Supreme Court ordered a second disbarment anyway.
At oral argument some of the justices expressed the view that permanent disbarment would be justified for even minor misconduct by a previously disbarred lawyer, Johnson said, and earlier this year the high court sent a letter to the State Bar asking it to make recommendations on the subject.
Drexel presented a proposal to the committee last month that would have incorporated permanent disbarment into the State Bar Rules of Procedure, but yesterday presented a revised draft for inclusion in the California Rules of Court. The Rules of Court, unlike the Rules of Procedure, require Supreme Court approval, and Drexel and Johnson said adopting a permanent disbarment rule might exceed the authority of the State Bar to adopt procedural rules.
Drexel’s new draft said permanent disbarment would be appropriate for attorneys convicted of any of six categories of criminal offenses: first- or second-degree murder; felonies involving rape, child molestation, or substantial sexual conduct with a child under 14 years old; mayhem or any other felony involving “the personal infliction of great bodily injury on another person”; kidnapping; arson of an inhabited structure or taking of property by force or fear; and malfeasance in public office involving fraud, embezzlement, or misuse of public funds.
Permanent disbarment would also be suggested for lawyers whose misconduct included “engaging in” multiple acts of theft of client funds, intentional corruption of the judicial process, insurance fraud in the course of law practice, or knowing unauthorized practice of law after disbarment, resignation or suspension.
Attorneys reinstated after disbarment could be subject to permanent disbarment if disbarred a second time, and Drexel’s revision included a 12th category: “engaging in conduct, involving fraud, moral turpitude or a pattern of serious misconduct that is so egregious that the member should be permanently disbarred.” The proposed rule would characterize the list as “guidelines that illustrate the types of conduct that warrant” permanent disbarment.
Despite the revision of the list, the proposal again drew opposition from State Bar President James O. Heiting — who is not a member of RAD but participated in yesterday’s Los Angeles meeting by telephone — and committee member Danni R. Murphy, a deputy public defender in Orange County.
Heiting, who was himself placed on State Bar probation in 1988 after a car accident resulting from his alcohol abuse, complimented Drexel on the revisions of the rule, saying they had “tightened it up quite a bit.”
But he said the new version risked imposing permanent disbarment for conduct which took place before the adoption of the rule, since it directed the State Bar Court to bar further reinstatement petitions by any lawyer seeking reinstatement who is found to have engaged in conduct after disbarment that would come under the permanent disbarment rule. The proposed rule, he noted, did not specify when that conduct had to have occurred.
‘Great Bodily Injury’
Murphy called including the list of offenses “problematic,” pointing out that under the relevant case law “great bodily injury” can be quite minor and that it does not necessarily imply any intent to inflict injury at all. The rule, she suggested could subject attorneys convicted of drunk driving to permanent disbarment if they caused an accident in which someone was even slightly hurt.
Other offenses not listed, such as domestic violence or drug crimes, could plausibly be considered equally blameworthy, she said.
“Why do we have to specifically enumerate items?” Murphy asked. “They’re not enumerated correctly. They’re confusing. I don’t see the need for them.”
Johnson and RAD Chair Paul S. Hokokian, a Fresno attorney, pointed out that any draft would be subject to revision after public comment and might also be substantially altered by the Supreme Court before adoption. But Murphy said Drexel’s list “sends the wrong message,” adding:
“We want to send out the best possible document we can.”
Committee member Jo-Ann W. Grace, co-publisher of the MetNews, questioned whether a court rule was the appropriate vehicle for implementing permanent disbarment.
“Any rulemaking cannot abrogate decisional law,” Grace asserted, asking:
“Is there no other vehicle other than the proposed court rule to do so?”
Heiting pointed out that the Supreme Court can impose permanent disbarment if it wishes to, and Drexel agreed that doing so is within the court’s “inherent authority.” But he noted that it was the high court that was seeking input from the State Bar.
If the committee failed to act on his draft rule, Drexel warned, “somebody’s going to have to communicate to the Supreme Court our rationale for not proceeding with this proposal or anything like it.”
Though an informal show of hands indicated that four of the five RAD members in attendance favored the concept of permanent disbarment — public member Dorothy Tucker was the only exception — the panel voted 3-1 to refer the matter back to Drexel and his staff for more study, with only Los Angeles representative Holly J. Fujie, an attorney with Buchalter Nemer, dissenting.
But after a lunch break, and Tucker’s departure, Fujie suggested eliminating the list of specific grounds from the draft rule and substituting a general list of factors which were part of a 1996 permanent disbarment proposal adopted by the Board of Governors. Those factors are the nature of the underlying misconduct, the attorney’s prior discipline record, the likelihood of rehabilitation, any aggravating or mitigating circumstances, and the length of any “interim suspension following criminal conviction.”
Fujie also urged that the draft rule say only that the court “may” recommend whether a lawyer should be permanently disbarred, rather than that it “must” do so in all disbarment cases.
Hokokian and Drexel noted that the factors listed in 1996 are those the State Bar Court already considers in deciding whether to disbar an attorney at all, and Johnson pointed out that the 1996 proposal was withdrawn at the request of the Supreme Court and had been criticized as giving too little guidance to State Bar Court judges and insufficient notice to attorneys as to what conduct might subject them to permanent disbarment.
But Fujie’s motion passed 2-1, with Grace joining the majority and Murphy opposed.
Fujie then moved to include Drexel’s list in the circulated draft as a comment, with a notation that it is the chief trial counsel’s recommendation and a request for public and attorney input about whether such a list is needed and if so what should be on it. That motion passed 3-0.
The draft rule would also require attorneys seeking reinstatement to re-take the California Bar Examination and would extend the minimum time for seeking reinstatement from five years to seven.
Heiting said he saw no need for the latter provision, which Drexel had defended on the basis that only about one-third of the attorneys who seek reinstatement after the current minimum waiting period are successful. But the committee voted 3-1 to include both, with only Tucker dissenting.
Johnson said after the meeting that she expects the RAD panel to be able to reconsider the proposed rule, along with any public comment received, in time for the full board to take final action when it meets in Los Angeles in March.
The committee normally includes eight members, but one — Janet M. Green, a gubernatorial appointee — is at least temporarily off the board because her term has expired and Gov. Arnold Schwarzenegger has yet to either reappoint her or name a replacement.
Two other members did not attend yesterday’s meeting.
Copyright 2005, Metropolitan News Company