The Perils of Rule 9.20

One of the most dreaded consequences of disciplinary action is the requirement that the disciplined attorney comply with California Rule of Court 9.20.

Rule 9.20 requires  the disciplined  lawyer to do a number of things, including giving notice by certified mail of the suspension to all clients, opposing counsel, and filing this notice in every court where the attorney has pending matters.  Often overlooked are the other requirements in the role they require the disciplined attorney to return all unearned fees and return all client papers and property, as required by Rule of Professional Conduc1.6(e). Finally, the rule requires that a declaration be filed attesting to the attorney’s compliance with the rule.

Compliance with rule 9.20 is typically ordered where the attorneys placed on interim suspension pursuant to a criminal conviction or is going to be actually suspended for a period of 90 days or longer, although it has sometimes been ordered where the actual suspension is less than 90 days.

This rule strikes fear in the heart of lawyers for two very good reasons.  First, the notification the clients is can be a practice killer in a solo or small from practice. Once the clients have been notified and found other attorneys, they are not likely to ever come back to the disciplined attorney, who essentially has to build the practice from scratch after the suspension ends. Second, the sanction for failing to comply with real 9.20 is harsh; subsection  (d) of the rule provides that

A disbarred or resigned licensee’s willful failure to comply with the provisions of this rule is a ground for denying his or her application for reinstatement or readmission. A suspended licensee’s willful failure to comply with the provisions of this rule is a cause for disbarment or suspension and for revocation of any pending probation. Additionally, such failure may be punished as a contempt or a crime.

A complete failure to comply with the role is generally going to result in disbarment. Bercovich v. State Bar (1990) 50 Cal. 3d 116, 131. Lesser failures will still result in substantial discipline including a period of actual suspension.

An example is a recent unpublished* Review Department decision In the Matter of Smith (State Bar Court case no. 17-O-00668, filed February 12, 2019.)  Smith was ordered to comply as a result of being placed on interim suspension following a felony criminal conviction (see Bus. & Prof. Code section 6102(a)). Smith was incarcerated at the time the State Bar court issued the interim suspension order in February 2016 and did not comply with the rule until July 2016, although Smith knew that he has been placed on interim suspension.  Unfortunately, his compliance declaration was rejected for filing because it did not bear an original signature. Another rule 9.20 declaration bearing an original signature was filed in October 2016 was filed in October 2016.   Both of these declarations stated that Smith had contacted all of his clients within 30 days of his release from jail in April 2016. This statement turned out to be inaccurate because two clients were notified after the 30 day period.

Rule 9.20 (a) prescribes tight deadlines for compliance.  Clients, opposing counsel, and courts must be notified within 30 days of the date of the order. The compliance declaration must be filed within 40 days of the effective date of the order  in court.  There has been some confusion in the past with Rule 9.20 orders that required compliance within 30 days of the  “effective date”  of the order, given that California Rule of Court 9.18 states that discipline orders are effective 30 days after they’re filed. Case law makes it clear that rule 9.20 dates run from the day the orders filed , not any subsequent date, despite the language of Rule 9.18. Athearn v. State Bar (1982) 32 Cal.3d 38, 45. This is a trap for the unwary that has snared more than one disciplined lawyer.

Smith unsuccessfully tried to argue in his brief to the Review Department that only the Supreme Court could issue an order requiring rule 9.20.  He dropped that argument at oral argument, apparently after reading California Rule of Court 9.10(a), which delegates the statutory powers in section 6102 to the State Bar court  Supreme Court.

The Review Department ultimately upheld the hearing judge’s recommendation of six months actual suspension, finding that Smith violated Bus. & Prof. Code section 6103 in failing to timely comply with the interim suspension order.  It also recommended that he be ordered to comply with Rule 9.20 again as part of that discipline.  And just for good measure, it included this additional condition of probation:

For a minimum of one year after the effective date of discipline, Smith is directed to maintain proof of his compliance with the Supreme Court’s order that he comply with the requirements of California Rules of Court, rule 9.20(a) and (c).  Such proof must include the names and addresses of all individuals and entities to which notification was sent pursuant to rule 9.20; copies of the notification letter sent to each such intended recipient; the original receipt and tracking information provided by the postal authority for each such notification; and the originals of all returned receipts and notifications of non-delivery.  Smith is required to present such proof upon request by OCTC, the Office of Probation, and/or the State Bar Court.

As if there was any doubt, the State Bar Court views Rule 9.20 compliance so seriously that it is willing to go beyond the requirements of the Rule itself and make it a probation condition.

* Unpublished cases are not citeable precedent in State Bar Court (State Bar Rule of Procedure 5.159).

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