Friday, May 26, 2006
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LACBA Trustees Oppose Permanent Disbarment Rule
By a MetNews Staff Writer
Los Angeles County Bar Association trustees voted unanimously Wednesday evening, with two members abstaining, to take a position against the State Bar’s proposal that would introduce a permanent disbarment provision into the California Rules of Court.
The proposal would amend the current Rules of Court by adding rules 951.2 and 951.3, which would open up the possibility of permanent disbarment for lawyers who have previously been disbarred or who have engaged in certain categories of serious misconduct. The State Bar Regulation Admissions and Discipline Committee voted 3-2 on March 16 to recommend that the Board of Governors adopt the proposal.
The crux of the proposal is subsection (e) of rule 951.2, which provides that the State Bar court, “in any recommendation involving the disbarment of a member, must also recommend whether the member should be permanently prohibited from filing a petition for reinstatement.”
In making its recommendation, the State Bar Court “must” consider “guidelines” illustrating the types of conduct that would warrant permanent disbarment. The enumerated categories include engaging in “the intentional corruption of the judicial process, including but not limited to bribery, forgery, perjury or subornation of perjury,” and engaging in “conduct, involving fraud, moral turpitude or a pattern of serious misconduct that is so egregious that the member should be permanently disbarred.”
Retired State Bar Court Judge Michael D. Marcus, who chairs LACBA’s Professional Responsibility & Ethics Committee and was invited to speak on the issue, criticized the extensiveness of the proposed rule:
“The proposal has several provisions that are overly broad and potentially dangerous. For example, 951.2(e) could include the destruction of evidence, a misdemeanor which is bad, but should it be grounds for permanent disbarment? [Also,] ‘Moral turpitude’ has historically not led to disbarment, but now all of a sudden at the discretion of the prosecutor it can lead to permanent disbarment.”
Marcus asserted that California’s current system has an exacting process and a heavy burden of proof that most people cannot carry. “It is a system that has worked well—There are probably more people being disbarred today than ever before.”
Referring to Ron Silverton, who was disbarred in 1975 and—after succeeding in a fourth bid for reinstatement in 1992—was subsequently disbarred a second time for entering into unconscionable fee agreements, Marcus said there is no reason to change the law “just because of one bad situation.”
“Two adages are applicable [to this discussion],” he said. “Bad facts make bad law, and secondly, if it ain’t broke, don’t fix it.”
JoAnne Earls Robbins, an attorney with Karpman & Associates and former State Bar Court prosecutor and judge, agreed with Marcus.
“Attorneys, being human beings, are fallible and sometimes they’re broken. That doesn’t mean they can’t be fixed [and are broken] forever. The point at which to fix what might be broken is at reinstatement. Strengthen the reinstatement provisions if you must, but permanent disbarment is too risky.”
Robbins emphasized that although most people think of disbarred attorneys as people who have engaged in terrible misconduct, there is always another side to the story. “A lot of people are disbarred for other reasons, oftentimes because of technicalities. For example, an attorney failed to show up to the hearing because he was suffering from substance abuse—.These people deserve a chance.”
State Bar Chief Trial Counsel Scott Drexel took the opposing view.
“This is not an issue of taking advantage of someone who has a substance abuse problem.” He explained that although the impression may be that permanent disbarment is a possibility for every situation, “that is clearly not the case.”
The proposed rules of court do not divest judges of discretion by making permanent disbarment automatic, but instead only identify certain conduct as grounds for potential disbarment, he said. Even for offenses within the permanent disbarment rules, Drexel explained, a judge would have the discretion to consider mitigating circumstances and conclude that an individual does not warrant permanent disbarment.
The chief trial counsel said that of the 65 individuals who were reinstated in a 12-year period, 71% had subsequent complaints filed against them, one attorney receiving 27 complaints; three reinstated attorneys, including Silverton, were disbarred a second time; four resigned with charges pending; and five were convicted of criminal offenses after reinstatement. “These are persons who do engage in [subsequent] misconduct,” he said.
Drexel pointed out that there are currently seven states in which every disbarment is a permanent disbarment, and said that while he does believe people change, some offenses go so directly to the heart of the profession that they merit permanent disbarment.
Asked by LACBA President Edith Matthai as to whether the proposal was in its final form, Drexel answered, “There’s still room for change. That’s why it’s out for public comment.” If the State Bar makes changes to the language of its proposal, Drexel opined, it could go back out for public comment depending on the significance of the changes. “We’re not at the end of the process,” he said.
Upon the board’s vote to oppose the proposal, Matthai said the board would draft a letter to the State Bar raising board members’ concerns about lack of judicial discretion and overbreadth.
Currently, only eight of the 50 states have adopted permanent disbarment provisions.
Copyright 2006, Metropolitan News Company