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Proceedings before the State Bar Court are governed by the State Bar's own rules of practice and procedure, the Civil Discovery Act, and a portion of the Administrative Procedure Act that permits the introduction of hearsay evidence. As of 2011, the Rules of Evidence do not strictly apply.
Proof is by "clear and convincing" evidence. Evidence by a clear and convincing standard requires that the proof be "'so clear as to leave no substantial doubt' [and must be] 'sufficiently strong to command the unhesitating assent of every reasonable mind.'" Sheehan v. Sullivan (1899) 126 Cal. 189, 193.
However, in most instances, all that need be proved is a "wilful" violation, Business and Professions Code Section 6077. Wilful is a special term of art at the State Bar. It has nothing to do with traditional tort or criminal law concepts of intent. It simply means that the act complained of occurred. Zitney v. State Bar (1966) 64 Cal. 2d 787. For example, at the State Bar, if it rained last Monday, it would be deemed to be wilful rain.
One bright spot is that where the facts lead to two equally reasonable conclusions, the attorney is to be afforded the benefit of the doubt. In the matter of Frazier (Review Dept. 2992) 1 Cal St. Bar Ct. Rptr. 676; Kapelus v. State Bar (1987) 44 Cal 3d 179. Trials are highly emotional; it is quite possible that someone who you tried to help is now claiming you harmed them.
Remember the State Bar has only one side of the story. Your side is extremely important because: "'all reasonable doubts will be resolved in favor of the accused and if equally reasonable inferences may be drawn from a proven fact, the inference which leads to a conclusion of innocence rather than one leading to a conclusion of guilt will be accepted.'" Millsberg v. State Bar (1971) 6 Cal.3d 65, 68.
There are no jury trials and disciplinary proceedings are open to the public. The actual proceedings are quite small, and the public rarely if ever attends. Cases are heard in either San Francisco or Los Angeles. There are three full-time professional hearing department judges in Los Angeles and two in San Francisco. A three-person Review Department functions as an appellate body in reviewing decisions of the hearing department and also has original jurisdiction in certain disciplinary matters.
The decisions of the Hearing and Review Departments are only recommendations to the state Supreme Court, which has the final word. Trial is to be commenced within 125 days of the filing of the notice of disciplinary charges.
Trials are bifurcated proceedings. If culpability is found, then a hearing is held on aggravating and mitigating factors, and the level of discipline to be imposed. Although trial is bifurcated, in responding to an inquiry letter it is often a good idea to bring all mitigating circumstances forward so that the investigators can understand whom they are dealing with.
The offering party bears the burden of proof for aggravating and mitigating circumstances. The attorney must establish mitigation by clear and convincing evidence, while the State Bar has the same burden to prove aggravating circumstances. (Standard for Attorney Sanctions 1.2(e) and 1.2(b).) Ordinarily,misconduct need only be found to be wilful rather than knowing or intentional to warrant discipline. Again, wilful merely means that the event occurred.
The Standards for Attorney Sanctions provide presumptive levels of appropriate discipline. However, there is no fixed formula to determine the appropriate level discipline in a particular case. In the Matter of Brimberry (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 390, 403. Ultimately, the State Bar Court will balance all relevant factors, including mitigating and aggravating circumstances, on a case-by-case basis to impose discipline consistent with its purpose. In re Young (1989) 49 Cal.3d 257, 266. Discipline becomes progressively more severe when you have prior violations. The thinking is: whatever degree of discipline was imposed on the attorney last time was not sufficient to prevent further violations.
Business and Professions Code Section 6086.10 and State Bar Rule of Procedure 280 provide that in matters resulting in a public reproval or greater, the record of the State Bar proceedings transmitted to the Supreme Court with a record of suspension, disbarment or acceptance of a member's resignation with disciplinary charges pending, shall be accompanied by the cost certificates of the Office of the Chief Trial Counsel and the State Bar Court. These costs include the costs of taking, videotaping, and transcribing depositions, ordinary witness fees, transcripts of court proceedings, models and blowups of exhibits, investigation expenses incurred after filing of the notice of discipline charges, and service of process fees.
Many lawyers fail to realize that not only will they suffer the shame of the disciplinary proceeding, but they will also have the privilege of paying for it as well. If your case goes to trial and the State Bar prevails on just one of the charges, as of 20164, you will have the privilege of paying for the entire proceeding in the form of a "cost assessment" running between $3,139 to $18,814.
Costs increase so long as the matter remains contested. This "assessment" will be added to your dues bill and can be entered as a civil judgment against you.
As part of its decision, the State Bar Court will also normally order payment of any restitution deemed due to former clients. Typical terms and conditions of probation include the passage of the Multi-state Professional Responsibility Examination, the assignment of a probation monitor, and the filing of quarterly compliance reports. Any attorney actually suspended for 90 days or more will have to comply with the provisions of California Rule of Court 9.20 by notifying all clients, courts, and opposing counsel of the member's impending suspension/disbarment and certifying such under penalty of perjury. This is like a felony at the State Bar. Failure to strictly and timely comply with this rule is the number one cause of disbarments.
A love letter from the State Bar is often inevitable given the unrealistic expectations of many clients. Because membership in the State Bar is mandatory, knowing the system and the procedure can help you avoid becoming a regulatory statistic.