2014-12

PLEASE NOTE: Publication for public comment is not, and shall not be construed as, a recommendation or approval by the Board of Trustees of the materials published.

SUBJECT:

Discipline Standards Task Force Proposed Modifications to the Standards for Attorney Sanctions for Professional Misconduct

BACKGROUND:

In October 2013, the Board of Trustees adopted “clean-up” changes to the Standards for Attorney Sanctions for Professional Misconduct and appointed a Discipline Standards Task Force to evaluate and determine whether a comprehensive overhaul was needed and if additional changes should be made.

The Task Force began its work in May 2014 and held a series of four public hearings through October 24, 2014.  The Task Force broke into three working groups: Working Group I (Standards Model Comparisons), Working Group II (Levels of Discipline), and Working Group III (Aggravation and Mitigation).  These working groups met and made recommendations to the full Task Force.  The Task Force received and approved those recommendations on October 24, 2014, and voted to refer them to the Regulation and Discipline Committee.

As part of its charge, the Task Force looked at other disciplinary standard models, including state and federal criminal sentencing guidelines, the ABA Model Rules, and attorney disciplinary standards from other jurisdictions.  Ultimately, the Task Force declined to adopt the model of narrowly tailored sentencing guidelines.  The Task Force also decided the ABA Model Rules were not a good fit either – as the Model Rules contained terms such as “negligence” and “admonitions” that were inconsistent with California’s approach to levels of discipline.  However, the Task Force did recommend substantive changes to certain Standards and the adoption of new Standards for specific acts of misconduct that were only previously addressed in a catch-all provision.  Among the modifications, the Task Force recommendations include:

• Adding clarifying language and definitions to otherwise ambiguous terms, such as public and private reprovals, interim remedies, conditions, and probation.
• Separating public and private reprovals into separate levels of discipline.  See Standard 1.3(d) and (e).  
• Removing footnotes and citations throughout the Standards.  The Standards are intended to capture general principles, and since every disciplinary case is decided on its own facts and circumstances, determining which cases and authorities to cite became controversial.  It was decided that adding source references and notes transformed the Standards into more of a treatise rather than a statement of general guidelines, and that the State Bar Court Reporter and the State Bar Compendium provide a comprehensive guide of essential cases in each category without appearing to give more weight to any specific case. There was also a concern that including footnotes and citations would require periodic updates and additional resources.
• Breaking out concealment, overreaching, and uncharged violations as stand-alone factors in aggravation. See Standard 1.5(f)-(h).  
• Adding “misrepresentation” and “high level of vulnerability of the victim” as factors in aggravation in Standard 1.5(e) and (n).
• Modifying Standard 1.6(a) to clarify that absence of a prior record of discipline is considered mitigation when the present misconduct is deemed to be “aberrational and not likely to recur.”  This is more consistent with existing case law than the language in the current Standard, which uses the phrase “misconduct that is not deemed serious.”  
• Including a new introduction section to Part B, Sanctions for Specific Misconduct that indicates that “presumed sanctions” are the starting point for the imposition of discipline, and that the degree of sanction can increase or decrease based on factors in mitigation and aggravation.  The introduction also indicates that there may be acts of misconduct not specifically listed in Part B, but which are captured in the catch-all provisions in Standards 2.18 and 2.19.
• Throughout Part B, a new phrase “presumed sanction” has been used for each Standard.  This replaces the current language which states “xxx level of discipline is appropriate.”
• Revising the language in current Standard 2.1 “Misappropriation” to reflect levels of discipline more consistent with case law.
• Breaking out several new Standards that are currently captured in the catch-all provisions.  These new Standards include: (1)  Standard 2.5 “Representation of Adverse Interests”; (2) Standard 2.6 “Breach of Confidentiality”; (3) Standard 2.8 “Fee-Splitting with Non-Lawyers”; and 2.9 “Frivolous Litigation.”  These new Standards are based on violations of the Rules of Professional Conduct and the State Bar Act, and the presumed sanctions were derived from existing Supreme Court case law and State Bar Court precedent.  In general, these new Standards have ranges that include actual suspension to reproval – which are wholly consistent with Business and Profession Code section 6077 that provides for suspension to reproval for a willful breach of the any of the Rules of Professional Conduct.  The Frivolous Litigation Standard includes disbarment as a sanction, but only when there is a pattern.
• Replacing current Standard 2.5 “Failure to Perform or Communicate” with new Standard 2.7 “Performance, Communication or Withdrawal Violations.”  The Task Force explored breaking out performance and communication violations into separate Standards, but realized that the case law bundles them together and there were no published cases dealing with failure to communicate as a stand-alone offense.  Renaming the Standard -- “Performance, Communication or Withdrawal Violations” -- better captures types of misconduct that generally appear in tandem.  The Task Force was also concerned that breaking these out into separate Standards could lead to stacking of discipline.
• Standard 2.7 (renumbered as 2.11) relating to “Moral Turpitude, Dishonesty, Fraud, Corruption, or Concealment” was expanded to include “intentional or grossly negligent misrepresentation.”  In determining the degree of sanction, additional language was added to capture the “impact on the adjudicator” and “the administration of justice”.
• Correcting typographical errors, incorporating grammatical edits, renumbering, and making conforming changes throughout the Standards.  
• The Task Force also recommended that a staff working group be formed to evaluate whether “stayed suspension” should be eliminated as a level of discipline.  The Task Force’s full proposed modifications to the Standards for Attorney Sanctions for Professional Misconduct are provided in Attachments A and B.

DISCUSSION/PROPOSAL:

At its Nov. 6, 2014 meeting, the Regulation and Discipline Committee authorized the creation of staff working group to evaluate the issue of “stayed suspension” and it also authorized a 70-day public comment period to circulate the Task Force’s proposed revisions to the Standards for Attorney Sanctions for Professional Misconduct.
The agenda item and attachments linked below describe the proposed recommendations in detail.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None expected.

ATTACHMENTS:

Regulations and Discipline Committee Meeting – Nov. 6, 2014:

• Agenda Item – Discipline Standard Task Force Recommendations for Revisions - Request For Release For Public Comment
• Attachment A – Discipline Standard Task Force Recommendations for Revisions - Request For Release For Public Comment Clean Format
• Attachment B – Discipline Standard Task Force Recommendations for Revisions - Request For Release For Public Comment Redline Format

SOURCE:

Regulation and Discipline Committee

DEADLINE:

Jan. 16, 2015

DIRECT COMMENTS TO:

Veronica Li
Office of General Counsel
The State Bar of California
180 Howard St.
San Francisco, CA 94105

Email: [email protected]