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State Bar Board Panel Backs Permanent Disbarment
By DAVID WATSON, Staff Writer
A State Bar Board of Governors committee voted yesterday in favor of a proposed rule under which State Bar Court judges could recommend permanent disbarment for lawyers guilty of repeated or especially serious misconduct.
The 3-2 vote of the board’s Regulation Admissions and Discipline Committee came after one of two competing versions of the proposal was amended to eliminate references to a variety of crimes unrelated to the practice of law.
Los Angeles board member Holly J. Fujie, an attorney with Buchalter Nemer, suggested trimming from the original list of 12 grounds for permanent disbarment five categories of criminal conviction: 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; and arson of an inhabited structure or taking of property by force or fear.
Retained from the original list were convictions of malfeasance in public office involving fraud, embezzlement, or misuse of public funds and misconduct which includes “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.
Also retained was a provision suggesting that attorneys reinstated after disbarment should be subject to permanent disbarment if disbarred a second time, as well as a final 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. If approved by the full board at its June meeting in San Francisco, the proposal would be forwarded to the state Supreme Court for adoption as part of the California Rules of Court.
Fujie argued that the types of serious criminal acts eliminated by her amendment could still be penalized under the final catch-all category.
State Bar Chief Trial Counsel Scott Drexel reminded the committee, which had already devoted two meetings to the issue, that the impetus for a permanent disbarment had come in a letter from the Supreme Court in the wake of it ruling in 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, State Bar Executive Director Judy Johnson had previously told the committee, and last year the high court sent a letter to the State Bar asking it to make recommendations on the subject.
Fujie suggested that focusing on conduct related to the practice of law would be more appropriate than a list of heinous crimes
Committee member Danni R. Murphy, a deputy public defender in Orange County, argued that including the list of crimes could be problematic, pointing out that current State Bar President James O. Heiting, who was placed on State Bar probation in 1988 after a car accident resulting from his alcohol abuse, could have been permanently disbarred under the original proposal since the accident resulted in a serious injury.
Heiting, who is not a member of the committee, argued that current rules governing reinstatement are adequate to protect the public.
Murphy and public member Dorothy Tucker voted against the amended proposal. Fujie, MetNews co-publisher Jo-Ann Grace, and Sacramento member Ruthe Ashley voted in favor of it.
The two proposals — an alternative version listed general guidelines instead of specific offenses — had been circulated for public comment after the committee’s November meeting. Drexel told the committee 41 comments had been received an that 26 of them favored the concept of permanent disbarment, and Ashley said she believed most members of the public would be shocked to learn that disbarred attorneys can currently seek reinstatement after five years.
But Heiting, in a letter to the chair of the committee, Fresno lawyer Paul S. Hokokian, said “all states” have considered permanent disbarment and only eight have adopted it.
Addressing the committee yesterday, Heiting said that if lawyers are being reinstated when they should not be the problem was “the application of the reinstatement process, not the standards,” which he asserted are sufficiently rigorous to protect the public.
He said he agreed that some lawyers should never be reinstated, but said the current regulatory scheme “takes care of that.”
Noting that if the individual injured in the accident in which he was involved had died he could have been charged with second degree murder, Heiting said it is “up to the court to say no, not good enough.”
He argued:
“You wouldn’t have the finality, but you’d certainly have the protection. The standards are very high. I believe that those standards take care of us and take care of the public.”
Attorney JoAnne E. Robbins, who currently defends lawyers accused of misconduct but has also been a State Bar prosecutor and a State Bar Court hearing judge, told the committee it was impossible to judge in advance which disbarred attorneys might later be able to demonstrate the moral character required for reinstatement and which would not.
“We are not issued crystal balls, we are not taught clairvoyance,” she declared, adding:
“The time for that decision is at the time of the petition for reinstatement.”
State Bar Court Acting Chief Court Counsel George Scott commented on the tension between the state high court’s apparent interest in restricting reinstatements and its own jurisprudence, which stresses the possibility of rehabilitation, and which, George suggested, State Bar Court judges have been trying to follow.
The permanent disbarment proposal was also opposed, in letters, by the Professional Responsiblity and Ethics Committee of the Los Angeles County Bar Association and by the Association of Discipline Defense Counsel.
The committee also voted, by the same 3-2 margin, in favor of rule changes that would extend the period a disbarred lawyer must wait before seeking reinstatement from five years to seven and that would require attorneys to take and pass the attorney bar examination before being allowed to resume practice.
Copyright 2006, Metropolitan News Company