Tuesday, August 22, 2006
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State Bar Board of Governors Supports Permanent Disbarment Rule
By TINA BAY, Staff Writer
The State Bar Board of Governors has voted to endorse the adoption of a proposed new rule of court making permanent disbarment a possibility for lawyers engaged in repeated or serious misconduct.
Members voted 9-5 at Saturday’s meeting in Los Angeles to recommend that the Supreme Court adopt proposed new rule 951.2, which would require the State Bar Court, anytime it recommends the disbarment of a member, to also recommend whether that member should be permanently prohibited from seeking reinstatement.
Board members Ruthe C. Ashley, Jeffrey L. Bleich, Jeannine English, Holly J. Fujie, Paul Hokokian, Maralee MacDonald, James N. Penrod, James A. Scharf, and President-elect Sheldon H. Sloan voted in favor of the proposed rule. Members Richard L. Crabtree, Marguerite D. Downing, Danni R. Murphy, M. Carmen Ramirez, and MetNews co-publisher Jo-Ann W. Grace voted against recommending the rule’s adoption.
Proposed Rule
Under rule 951.2—which would for the first time add permanent disbarment to California’s attorney discipline system—State Bar Court judges would consider various types of misconduct that may warrant permanent disbarment, such as a previous disbarment or resignation with disciplinary charges pending, or engaging in “the intentional corruption of the judicial process” through perjury or the subornation of perjury.
The proposed rule also includes a catch-all category for any conduct “involving fraud, moral turpitude or a pattern of serious misconduct, that is so egregious that the member should be permanently disbarred.”
Scharf reminded his fellow board members that, of the various justifications proffered in favor of the rule during the board’s eight-month-long debate on the issue, an important one was the message it would send to the public.
“There is symbolic value to be gained at very minimal cost in terms of enhancing the public perception that we are doing our job appropriately to deal with this problem,” he said, adding that the rule simply gives judges an additional sentencing option.
Symbolic Value
Murphy, a member of the Regulation, Admissions and Discipline Oversight committee, told the MetNews that the proposed rule’s symbolic value was insufficient basis for the radical measure of permanent disbarment.
“The existing heavy burden on attorneys to gain reinstatement, and the fact that so few attorneys have been successful in meeting that challenge demonstrates that the exacting and well-recognized body of law governing reinstatement to the bar has been effective in protecting both the public and the bar,” she said, adding that the proposed shift to permanent disbarment was unsupported by empirical evidence.
951.2 in its present form is the product of a collaborative effort by the Office of General Counsel, Office of the Chief Trial Counsel, and State Bar Court, which began working on the proposed amendment in May 2005 at the high court’s request.
The RAD committee twice authorized a 90-day public comment release of the proposed rule, first in November 2005 and again this March. Three organizations, including the Los Angeles County Bar Association, and 51 individuals—42 attorneys and nine members of the general public—submitted comments.
All nine non-attorneys favored the proposal, while the attorney comments were split exactly in half. LACBA had formally voiced its opposition to the rule in a June 30 letter to the board.
LACBA’s president-elect, Gretchen M. Nelson, told the MetNews:
“We’re obviously disappointed that [the board] didn’t agree with the position that we took on the matter.”
The board also voted 9-5 to recommend the adoption of proposed rule 951.3, which would require individuals seeking reinstatement to the bar, following disbarment or resignation, to take and pass the attorney bar examination in order to demonstrate their present learning and ability in the general law.
By a vote of 8-6, the board declined to support a proposed rule that would increase the current waiting period for reinstatement from five to seven years.
Scott Drexel, the State Bar’s chief trial counsel, said he was comfortable with the board’s decision on the waiting period proposal, which he called the least important of the three changes being considered.
“I’m pleased that the board approved both the permanent disbarment and the requirement of taking the attorney bar exam as a condition for reinstatement,” he said. “I think that those are both very important public protection measures.”
Drexel said he estimates the State Bar will submit its completed report to the Supreme Court within the next 30-60 days, and hopes the court will act within 90-180 days after the bar submits its materials.
Copyright 2006, Metropolitan News Company