Appellate Defenders, Inc. – January 25, 2017

1. Appellate Defenders, Inc. – January 25, 2017 THE STATE BAR DISCIPLINE SYSTEM (AND HOW TO AVOID IT) Ross Viselman, Senior Trial Counsel Drew Massey, Senior Trial Counsel Office of Chief Trial Counsel The State Bar of California

2. Disclaimer As employees of the State Bar, we are not authorized to provide you with any legal advice or counsel, or render a legal opinion. Our comments do not represent the official position of the State Bar, its Board of Trustees, or the State Bar’s Chief Trial Counsel. Similarly, the comments and views offered here should not be taken as reflecting the views of the State Bar, its Board of Trustees, or the State Bar’s Chief Trial Counsel.

3. Why Attorneys Get Into Trouble • Ignorance • Poor Delegation/Supervision • Lack of Office Policies & Procedures • Financial Problems • Stress/Burn-Out • Substance Abuse Issues • Mental Health Issues • Carelessness • Poor Judgment • Greed/Dishonesty

4. State Bar Complaints • Who complains? • Clients, opposing counsel, courts, non-client members of public, etc. • Why do they complain? • Lack of communication with attorney • Failure to send client funds (settlement proceeds, fees) refund fees • Unexpected outcome • Animus • Statutory responsibility

5. Sources of Attorney Discipline Criminal Convictions • Crimes involving moral turpitude or other conduct warranting discipline (including DUI’s) • Summary Disbarment Felony involving Moral Turpitude per se Guilty/nolo plea or jury verdict • Interim Suspension Any felony or misdemeanor involving moral turpitude per se • Disciplinary Trial Re: Facts and Circumstances • Elements of crime deemed proved.

6. Structure of the State Bar Chief Trial Counsel’s Office Intake Unit- Screening Investigators: ~ 50 Attorneys: ~ 80 State Bar Court 5 Trial Judges 3-Judge Review Department Direct Appeal to California Supreme Court San Francisco and Los Angeles Offices

7. Life Cycle of a Complaint Prosecutor Intake Investi-gation Hearing (5 judges) Appeal (3 judges) SUPREME COURT State Bar Court

8. Disciplinary Outcomes by Type * - Includes resignations with charges pending

9. Sources of Ethical Obligations California Rules of Professional Conduct ("RPC”) The State Bar Act – Business & Profs. Code (“B&P”) §6000, et seq. Case Law – California Supreme Court Cases – State Bar Court Review Department Cases (Published in Cal. State Bar Court Reporter)

10. Common Disciplinary Violations – Failure to Communicate • It is an attorney’s duty “to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.” • B&P§6068(m) • (RPC 3-500 is largely duplicative of B & P§6068(m), but adds requirement that attorney provide client with “copies of significant documents when necessary to keep the client so informed.”)

11. Common Disciplinary Violations – Failure to Perform Competently • RPC 3-110(A) • “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” • Example: No work on task for which attorney hired • Example: Repeated failure to make court appearances • Example: Intentional/reckless failure to meet statutory deadline • Common complaints in criminal matters: • Failure to investigate • Failure to interview or subpoena key witnesses • Failure to introduce exculpatory evidence • State bar does not discipline for mere negligence • State bar will not second-guess tactical/strategic decision • No defense that case is pro bono, problem client, or client not paying

12. Common Disciplinary Violations –Termination of Relationship • RPC 3-700, et seq. • General Requirements for Termination: • Give notice to client • Allow time for employment of other counsel • Return client file/unearned fees, and • Comply with applicable laws and rules (i.e. substitution with court approval). Withdrawal from action without client consent – subject to court approval.

13. Common Disciplinary Violations – Misrepresentation B&P§6068(d) It is the duty of an attorney to employ those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. B&P§6106 The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his or her relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.

14. Rules Prohibiting Attorney Misrepresentations (cont’d) Rule 5-220. Suppression of Evidence A member shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce. Rule 5-200. Trial Conduct In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law; …

15. Rule Regarding Communication of Settlement Offer Rule 3-510(A) Communication of Settlement Offer A member shall promptly communicate to the member’s client: (1) All terms and conditions of any offer made to the client in a criminal matter; and (2) All amounts, terms, and conditions of any written offer of settlement made to the client in all other matters.

16. Rule Regarding Trial Publicity Rule 5-120 (A) Trial Publicity A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter

17. Rule Regarding Prohibited Contact Rule 5-310 Prohibited Contact With Witnesses A member shall not: (A) Advise or directly or indirectly cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein. (B) Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the case. Except where prohibited by law, a member may advance, guarantee, or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying. (2) Reasonable compensation to a witness for loss of time in attending or testifying. (3) A reasonable fee for the professional services of an expert witness.

18. Rule Regarding Contact With Jurors Rule 5-320 Contact With Jurors (A) A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case. (B) During trial a member connected with the case shall not communicate directly or indirectly with any juror. (C) During trial a member who is not connected with the case shall not communicate directly or indirectly concerning the case with anyone the member knows is a juror in the case. (D) After discharge of the jury from further consideration of a case a member shall not ask questions of or make comments to a member of that jury that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service.

19. Rule Regarding Contact With Jurors (cont’d) Rule 5-320 Contact With Jurors (E) A member shall not directly or indirectly conduct an out of court investigation of a person who is either a member of a venire or a juror in a manner likely to influence the state of mind of such person in connection with present or future jury service. (F) All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a person who is either a member of a venire or a juror. (G) A member shall reveal promptly to the court improper conduct by a person who is either a member of a venire or a juror, or by another toward a person who is either a member of a venire or a juror or a member of his or her family, of which the member has knowledge.

20. Rule Prohibiting Criminal Prosecution without Probable Cause Rule 5-110 Duty of Member in Government Service A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending. B&P§6068(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

21. Common Disciplinary Violations –Failure to Obey Court Orders “A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” B&P §6103 Includes failures to comply with discovery orders or failures to pay sanctions if such order is directed at attorney personally.

22. Common Disciplinary Violations –Failures to Report to State Bar • B&P §6068(o) • Imposition of certain sanctions against the attorney • Felony prosecution against the attorney • Felony or designated misdemeanor conviction • Imposition of discipline by another agency (including another state bar) or board • Reversal of judgment based on attorney’s misconduct, gross incompetence, or misrepresentation • The filing of 3 or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful professional conduct

23. Common Disciplinary Violations – Violation of Duties to State Bar B&P §6068(i) – Duty to cooperate/participate in State Bar Disciplinary investigation/proceeding against attorney B&P §6068(j) – Duty to maintain current office address, phone number, etc. with State Bar as required by B&P §6002.1

24. Common Disciplinary Violations – Unauthorized Practice of Law • B&P§ 6125, 6126; RPC 1-300 • Ways Attorney Can Become Not Entitled to Practice • Failure to Pay Bar Dues • Failure to Comply With MCLE • Failure to Make Support Payments • Criminal Convictions • Prior Discipline, Failure to Pass MPRE • Entry of Default • “Not Entitled” and the Unauthorized Practice of Law • Culpability for enabling others to engage in the unauthorized practice of law

25. Common Disciplinary Violations – Conflicts • RPC 3-310, et seq. • Example of Conflicts • Representing driver and passengers in auto collision • Representing both parties to a divorce • Attorney’s undisclosed relationship with witness • Attorney’s undisclosed financial interest • Consecutive representation of adverse parties • Conversation about the conflict with the affected parties • is not sufficient; there needs to be informed written consent that the client signs.

26. Common Disciplinary Violations – Confidential Info B&P 6068(e) Attorney has duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Rule 3-100 Confidential Information of a Client (1) Attorney can reveal confidential information with “informed consent of client.” (2) Attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. Before revealing confidential information to prevent a criminal act, attorney shall, if reasonable under the circumstances: (1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and (2) inform the client, at an appropriate time, of the ability or decision to reveal information.

27. Standards for Attorney Sanctions for Professional Misconduct • Purpose of Discipline (std. 1.1) • Public protection • Maintenance of professional standards • Preservation of public confidence in profession • Punishment is not a purpose of attorney discipline • Aggravating & Mitigating Circumstances (stds. 1.5/1.6) • Aggravation: prior record of discipline, pattern of misconduct, significant harm, indifference, vulnerability of victim. • Mitigation: no prior record of discipline over many years with misconduct not likely to recur, good faith belief that is honestly held & objectively reasonable, spontaneous candor/cooperation, lack of harm • Sanctions for Specific Misconduct (std. 2.1, et seq.)

28. Public vs. Confidential? • B&P 6086 – public after filing NDC • Investigations confidential prior to filing NDC, except: • Attorney may waive • CTC or SB Prez may waive “when warranted for protection of public” • CTC may report criminal conduct to DA, or misconduct to other disciplinary agency

29. State Bar Resources Ethics Hotline – 800-2-Ethics (800-238-4427) Membership Records for Notification of Change of Address – 415-538-2577 Lawyer Assistance Program – Confidential. Includes resources for mental health (including work-life balance), alcohol or drug usage (legal or illegal). 213-765-1190 or toll free 877-527-4435 LAP@calbar.ca.gov

30. State Bar Resources (cont.) State Bar Website – www.calbar.ca.gov Free online resources. Handbook on Client Trust Accounting for California Attorneys – May be downloaded at no charge from ethics.calbar.ca.gov. State Bar Ethics School* State Bar Client Trust Accounting School* *(offered periodically in both San Francisco and Los Angeles bar offices)