Several states postpone attorney discipline hearings because of the coronavirus
Several states, including two of the top three states with the largest number of lawyers, have postponed attorney discipline case hearings amid the COVID-19 pandemic.
The State Bar of California announced March 17 that attorney discipline court events scheduled between that date and April 13 were vacated, while the State Bar of Texas recently said all investigatory and evidentiary hearings through the end of April were postponed “in an effort to minimize the potential spread of the coronavirus.” Additionally, Wisconsin, Michigan and Illinois are among the other states that have delayed some discipline-related hearings.
The states’ actions come as courts across the country are scaling back their operations in response to COVID-19.
The California bar mentioned the vacating of discipline case hearings in a press release announcing its offices are closed to the public through at least April 7. As a result of the building closures, the state bar court’s courtrooms and filing window are closed.
The California cases that had their upcoming hearings vacated have been placed in abatement status, meaning they are stayed and all the time limitations have been tolled.
Michael Avenatti, the former lawyer for adult film actress Stormy Daniels, is one California attorney who had a scheduled hearing vacated. The state bar has charged him with misappropriation of more than $800,000 in client funds and is seeking to have his license suspended while the charges proceed in California’s State Bar Court. Avenatti, who was convicted last month in New York for trying to extort millions of dollars from Nike, has denied the California bar’s allegations. He is currently incarcerated.
State law allows the California bar to petition for a license suspension prior to a disciplinary trial “when there is sufficient evidence to show that the attorney caused or is causing substantial harm to the attorney’s clients or the public and there is a reasonable probability both that the chief trial counsel will prevail on a related disciplinary matter and that the attorney will be disbarred.”
Amid the COVID-19 pandemic, California’s State Bar Court is permitting electronic submission of pleadings and other bar court documents via email, something it does not normally allow. A bar spokeswoman said the agency’s Office of Chief Trial Counsel is also continuing to file disciplinary charges against lawyers.
“We are committed to maintaining essential public services while also safeguarding staff, those closest to them, and members of the public with whom we interact,” California State Bar Interim Executive Director Donna Hershkowitz said in a statement.
Robert C. Fellmeth, executive director of the Center for Public Interest Law, criticized the California bar for postponing disciplinary case hearings.
Fellmeth, whose center is based at the University of San Diego School of Law, says the agency should have turned to technology to permit the hearings to move forward. He highlighted that the bar’s primary mission is to protect the public from unscrupulous lawyers.
“You don’t stop protecting people,” Fellmeth says. “Lawyers can do continuing harm.”
San Diego attorney David Cameron Carr, a former California bar prosecutor who now defends lawyers against discipline charges, says he supports the bar’s postponement of in-person hearings.
He acknowledges the bar’s actions will significantly reduce his workload, but says public health takes priority amid the spread of the coronavirus.
“Measures to keep people from coming to state bar court and interacting with court staff, opposing counsel and witnesses seem prudent in light of the pandemic,” Carr says.
Meanwhile, the State Bar of Texas says all those impacted by disciplinary hearings being postponed through the end of April will be contacted directly. Hearings scheduled in May and beyond are currently scheduled to be held.
“Their status will be evaluated as more information about the coronavirus becomes available in April,” the Texas bar says on its website. “At that time, additional steps will be taken as needed.”
In Wisconsin, the state supreme court directed the postponement of in-person conferences for court system staff. This prompted the state’s Office of Lawyer Regulation to postpone disciplinary case hearings through early May, says Keith Sellen, the office’s director.
In Michigan, the attorney discipline hearing panels were recently directed to administratively adjourn hearings scheduled through April 30 to give the panels and parties time to determine how to best litigate the cases in light of the coronavirus.
“Exceptions may be made to allow hearings on motions or pretrial proceedings to go forward telephonically or via videoconference,” Mark A. Armitage, executive director of the Michigan Attorney Discipline Board, wrote in an email.
Illinois’ Attorney Registration & Disciplinary Commission has canceled all in-person meetings and proceedings until further notice, according to its website.
Meanwhile, the Florida Supreme Court announced Friday it was suspending all deadlines for Florida Bar discipline cases.
Officials in other states, including Arizona and Utah, say attorney discipline cases are generally proceeding as usual.
The presiding disciplinary judge in Arizona is allowing for email filings and the Attorney Discipline Probable Cause Committee will likely meet remotely, says Joe Hengemuehler, a spokesman for the State Bar of Arizona.
Billy L. Walker, chief disciplinary counsel for Utah’s Office of Professional Conduct, said the office is not pausing its work on attorney discipline cases.
“Of course due to the virus concerns and situation, at least until April 1, we have made some changes to our working conditions which could result in a slight delay in our case processing times but we hope not,” Walker wrote in an email.