Recent unprecedented actions by the Bar and the California Supreme Court indicate that attorney discipline is only going to get tougher.
In the discipline process, cases are handled by the Bar and the State Bar Court, but all final discipline orders must be approved by the California Supreme Court. Typically the Court accepts what the Bar and Bar Court recommend, and hundreds of cases move through this stage of the proceedings smoothly every year. However, the Court has recently shown that it will exercise its authority to review these cases in detail and reject the recommended discipline.
In June, the Court sent 24 cases back to the Bar for further review. In these cases, the Court indicated that it believed the recommended discipline was too lenient.
The Bar then took its own action to recall additional cases before the Court reviewed them. Chief Trial Counsel Jayne Kim took over the top prosecutor position at the Bar in May (though she had held the role on an interim basis since last September). Among the changes she has made is to put in place an internal review procedure designed to make more consistent the discipline imposed in similar cases. The Bar asked the Supreme Court to send back another 24 cases that had made their way through the disciplinary proceedings below before the internal consistency standards were put in place. The Court actually denied the Bar’s request but on its own motion sent back 18 of those cases.
So the Bar is now reviewing 42 cases where the attorneys involved believed the matters were nearly settled. Every participant in the discipline process is keenly aware that final orders have to be approved by the Court, but historically this has not been a big hurdle so many attorneys do not put great emphasis on this phase of the case. A consistent level of discipline across cases is a great goal and one that I hope to see come to pass, as it would make much of the process simpler, including settlement negotiations with the Bar and risk analysis as attorneys prep for trial. It is unfortunate, though, that a price of this result is the upheaval of these 42 cases. Being on the defense side, I can only sympathize with the attorneys who thought their matters were nearly wrapped up. The stress and turmoil of having them reopened has got to be incredibly frustrating.
For more detail on these events, see the Bar’s press releases of June 22, 2012 and August 27, 2012. You can also see the San Diego Union-Tribune’s article, which includes some details on which attorneys’ cases were sent back.