Posted Aug 01, 2014 08:30 am CDT
The attorney discipline systems operated by the states must take into account two key, and related, questions: Are attorneys disciplined consistently for similar violations of the state ethics rules, and are the sanctions against attorneys strong enough to deter future violations and protect the public?
Those questions surely will be on the minds of the 14 members of a new task force created by the State Bar of California to determine whether a comprehensive overhaul of the state’s attorney discipline system is necessary. The Discipline Standards Task Force met for the first time in May, and the committee expects to submit a report and recommendations to the state bar’s board of trustees in September.
At this point, what those recommendations might be is anybody’s guess. The only thing for sure is that everything is on the table. And bar officials say now is a good time to take a closer look at how the attorney disciplinary system works. The Standards for Attorney Sanctions for Professional Misconduct were written in 1986—nearly 30 years ago—and underwent a general cleanup and reorganization last year.
“Now it’s time to decide whether a more comprehensive overhaul is needed to maintain our commitment to due process,” wrote Luis J. Rodriguez, the state bar’s president, in the May issue of the California Bar Journal. He is a division chief in the Los Angeles County public defender’s office. “Due process is fundamental to the practice of law and the justice system. We demand due process for our clients, and so it’s important that we apply the same principles of fairness when policing our own profession. One way that the bar ensures fairness is through a set of discipline standards, which are used to determine the appropriate sanction in a particular case and ensure consistency in how cases are dealt with.”
The task force’s efforts could be the first step toward a significant revamping of the attorney misconduct sanctions, says the bar’s executive director, Joseph L. Dunn. “This could lead to a substantial rewrite, a minor rewrite, or even a change in basic philosophical approach,” Dunn says. “For example, many disciplinary rules are based on a rehabilitation model. Some believe that attorney disciplinary standards should move to more of a punishment model. The mission of the task force is to determine whether the disciplinary standards in force adequately protect the public and ensure attorney compliance with the ethical rules.”
Karen M. Goodman, chair of the new task force, is well-versed in the nuances of the discipline standards. Before going off the bar’s board of trustees at the end of 2013, she chaired the Regulation, Admission and Discipline Committee during its initial review of the standards.
“I noticed two things when we did a cleanup of the disciplinary standards,” says Goodman, the owner and principal of Goodman & Associates in Sacramento. “First, there was a perception that the supreme court was kicking back several discipline stipulations in attorney discipline cases. It was our concern that the discipline was inconsistent for similar misconduct. Second, I was surprised that the standards had not undergone a thorough, substantive evaluation since 1986.”
Goodman says the task force will take a broad approach to its work. “This will be a holistic view of the standards,” she says. “It is not just focused on lawyer misconduct and the appropriate level of sanctions. One of the questions we will be asking is whether the current levels of discipline for particular offenses are an effective deterrent. We want to serve our mission of protecting the public. I would like to see a fair, efficient and transparent attorney disciplinary system for our state.”
Goodman and other California bar officials have indicated they will be looking at the ABA Standards for Imposing Lawyer Sanctions (PDF) as part of their review process.
It’s not unusual for states to review the operations and effectiveness of their lawyer disciplinary systems, and they often turn to the ABA for guidance. “In my experience, state supreme courts routinely review the efficacy of their lawyer regulatory systems—whether that review relates to certain discrete parts of the system, such as how to improve consistency in the imposition of disciplinary sanctions, or holistically,” says Ellyn S. Rosen, deputy director of the ABA Center for Professional Responsibility and counsel to the Standing Committee on Professional Discipline. “They do so because they take seriously their responsibility to protect the public and preserve the integrity of the profession.”
The ABA standards were adopted by the association’s House of Delegates in 1986, the same year California’s standards were written. The ABA’s standards, which were amended in 1992, provide a baseline for the standards adopted by many of the states. “State supreme courts look to the Standing Committee on Professional Discipline to help them ensure that lawyer discipline operates fairly, effectively and efficiently for all participants,” Rosen says. “The committee does so through its one-of-a kind and successful lawyer discipline system consultation process. Since 1980, the discipline committee has conducted 60 consultations at the request of state supreme courts.
“One area that the discipline committee addresses through the consultation process is the manner in which disciplinary sanctions are determined and imposed, and it uses the ABA Standards for Imposing Lawyer Sanctions as a guidepost,” Rosen says. “A clear methodology for determining appropriate and consistent discipline that retains necessary flexibility to fairly accommodate the unique facts of each case, such as that set forth in the sanctions standards, ensures fairness to the public and the bar.”
(This month, the Center for Professional Responsibility will publish the Annotated ABA Standards for Imposing Lawyer Sanctions. “This first-of-its-kind book, which becomes part of a collection with the ABA Annotated Model Rules of Professional Conduct and ABA Annotated Model Code of Judicial Conduct, will provide comprehensive and practical analysis of the cases and other legal authorities dating from the 1980s to the present,” Rosen notes. “This volume will be an essential resource for courts, lawyer disciplinary agencies, lawyers and the public.”)
When the state with the second-largest population of resident and practicing lawyers decides to consider major changes to its attorney discipline system, other jurisdictions are bound to take notice. (With 163,163 practicing lawyers, California is only 3,154 behind New York, according to numbers reported by the state bars to the ABA for 2013.) Moreover, California is the only state that uses a state bar court to hold proceedings for attorneys whom bar prosecutors have charged with misconduct. In addition to deciding lesser cases, the state bar court is empowered to recommend that the California Supreme Court suspend or disbar attorneys found to have committed more serious acts of misconduct.
Striking the best balance between flexibility for bar court judges and consistency in sanctions applied to similar cases of attorney misconduct will be a key challenge for the Discipline Standards Task Force, California bar officials say.
“Consistency of discipline is an ongoing concern, as it is for most disciplinary systems,” Dunn says. “We want to ensure consistency and predictability in attorney disciplinary systems as much as practically possible. It is a fine line to walk between ensuring consistency but also giving the bar court judges the flexibility to decide cases on a case-by-case basis.”
Goodman describes the issue even more succinctly: “I don’t want to turn this into a sentencing guideline system but do want us to have clear rules.”
Ethics expert Peter A. Joy suggests that other states would benefit from following California’s lead. “Lawyer discipline in the U.S. has improved greatly in the past 40 years,” says Joy, a professor at Washington University School of Law in St. Louis. “In some jurisdictions, there are still issues of inconsistencies. I think the California bar is taking a great first step to review its disciplinary process and to make recommendations for improvement. Every state should review its disciplinary process on a periodic basis to ensure that it works best to protect the public.”
Stephen Gillers, another leading ethics expert, echoes that view. A professor at New York University School of Law who served on the ABA’s Commission on Ethics 20/20 when it reviewed the Model Rules of Professional Conduct, Gillers recently conducted a yearlong study of New York’s attorney discipline system.
In that study, he found great discrepancies in sanctions imposed against lawyers for similar types of misconduct. This is, “in large part,” he says, “because discipline is decided not by a single statewide tribunal but by four different intermediate appellate courts that ignore each other’s rulings. New York’s system also lacks transparency because the system is closed unless a court decides to impose public discipline, which is comparatively rare. Forty U.S. jurisdictions, including California, open the process once a finding of probable cause is made.”
Gillers commends California for having written disciplinary standards. “New York, by contrast, has none,” he says. “The ABA has standards which some state high courts use as a guide. New York does not. The absence of standards contributes to the disparities in New York. The existence of standards helps ensure consistency.”
This article originally appeared in the August 2014 issue of the ABA Journal with this headline: “Run-Up to a Revamp: As California conducts an in-depth review of its lawyer discipline standards, other jurisdictions may follow closely.”