State Bar: Transparency for Thee But Not For Me

There is a lot of information on the State Bar of California website. But one thing you will not find. You won’t find decisions from the Hearing Department of the State Bar Court.

The State Bar Court page has a link to Hearing Department decisions. But you won’t find any after January 2019. That is, you won’t find recent ones. Instead, you will see this:

Hearing Department decisions are accessible from April 2014 through January 2019, at which point they vanish. If you want to see a Hearing Department decision after January 2019, you will have to know the specific case number or Respondent’s name.

Not coincidently, January 2019 was when the State Bar’s new case management system, aptly named Odyssey, came online. The same Odyssey implicated in the recent disclosure of confidential information now conceded to be the result of a flaw in the software provided by Tyler Technologies, the State Bar vendor, and not the result of some nefarious hack.

Long ago in the mists of history, longer even than the nine years Odysseus wandered on the wind dark ocean sea, the Association of Discipline Defense Counsel (ADDC) asked then Chief Trial Counsel James Towery (now Judge Towery) to provide copies of the Hearing Department decisions. The reason was to educate defense counsel about what was happening in State Bar Court to better advise their clients on what to expect in State Bar Court litigation and obtain knowledge that might lead to better trials and more settlements. Only about 50% of respondents are represented by counsel in the State Bar Court and not all of them by members of the ADDC. Only two institutions are privy to the complete picture of what goes on in the State Bar Court, the Court itself and the prosecutor, the Office of Chief Trial Counsel (OCTC). Discipline defense counsel are like the blind men in the parable: a trunk here, a leg there but no overall appreciation for what the elephant was. Judge Towery readily agreed.

Later on, in 2014, the State Bar Court began publishing links to a monthly list of decisions from the Hearing Department, a rather lazy solution compared to the full access the State Bar Court affords to decisions published and unpublished from the Review Department. But a better solution in terms of allowing access to the public at large access and understanding of the work of the Hearing Department. And, most importantly, a solution that allowed access to the entire corpus of that work, the cases where OCTC was successful as well as the cases where OCTC was not successful, either because the recommended discipline was less than that advocated by OCTC or because OCTC failed to prove any part of its case, resulting in a dismissal of charges.

Transparency and the public’s right to know have been trumpeted by the State Bar in advocating many policies, including posting the notices of disciplinary charges on the State Bar’s website before those charges are proven and the posting of the Consumer Alert badges in ever-expanding categories of cases, most recently, cases involving felony convictions.

These measures serve to protect the public, it is argued, by alerting consumers of legal services that the attorney that they might be thinking of hiring presents a potential danger. But it also serves the State Bar’s purpose to assure the public and the profession that it is zealously working to protect them. For the same reasons, attorneys who have been publicly disciplined are subject to publicity regarding their discipline, including inclusion in the Discipline Reports published in traditional legal newspapers and, more recently, postings on LinkedIn.

Discipline defense counsel know they do because we often achieve good results for our clients at trial, sometimes including complete dismissals. But the second purpose, the public relations purpose, isn’t served by disseminating information regarding OCTC’s failures. Finding information on the cases that OCTC loses, including how far they fell short and why is difficult.

But the overall picture is murky. The State Bar does publish statistics in the Annual Discipline Report but no detailed information as to why cases filed in State Bar Court are resolved with no action. For instance, the Annual Discipline Report for 2020 contains an entry for cases closed by the State Bar Court with no action, with an explanatory footnote stating that this could occur for many reasons, including “(1) respondent was disbarred in another matter; (2) respondent was ordered inactive pursuant to Business and Professions Code section 6007(b); (3) respondent’s death, shortly before or after dismissal; (4) respondent’s resignation; (5) dismissal by OCTC; and (6) dismissal by State Bar Court.”

As you can see, those numbers are not broken down by the types listed in the footnote.

Moreover, while complete dismissals are relatively few, there are no statistics on the much larger number of cases where OCTC sought a higher level of discipline than was ultimately decided on by the Court. This information can only be understood by an examination of the decisions themselves.

When Odyssey went live in January 2019, we were told that it would lead to greater transparency because it would allow the publication of the entire State Bar Court docket in each case online. This is true but misleading. More information is not necessarily better information, and without access to all Hearing Department decisions in one place, it is impossible for outsiders to fully analyze just how well OCTC is doing, measured by the yardstick of success in State Bar Court. Undoubtedly, OCTC closely analyzes each Hearing Department decision to determine whether to appeal it to the Review Department.

This information should be easily obtainable. Yet efforts by defense counsel to obtain these decisions have so far met with no success. And because State Bar Court no longer publishes even links to the decisions, they remain hidden from public view, accessible only in the dockets of individual cases. This is odd given that Review Department decisions are easily accessible. Whatever the explanation, this is incompatible with a government agency that has made transparency and the public’s right to know a central argument for publicizing its work.

Mountain Update: Supreme Court Denies Review in Respondent BB

The California Supreme Court has denied the Office of Chief Trial Counsel’s petition for review in In the Matter of Respondent BB, as case discussed in a previous post Going To The Mountain, posted 2/20/22. BB involved a San Francisco public defender found of two counts of disrespect to the courts and one count for failure to obey a court order. The hearing judge determined an admonition was appropriate under the “unique circumstances” established at trial along with five circumstances in mitigation and only one in aggravation; OCTC had sought a 30 day actual suspension. The Review Department, and now the Supreme Court, upheld that disposition.

A Warning from the Court of Appeal

We are told that California Rules of Professional Conduct are rules for discipline. And yet there are many Rules of Professional Conduct that are never, as far as can be determined, formed the basis for any discipline. In fact, these Rules largely serve an advisory role, giving lawyers notice of what the expected norms of professional conduct are. This distinction is more explicitly spelled out in the American Bar Association Model Rules of Professional Conduct in the Preamble section 14: “The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role.” But ultimately, it is the possibility of professional discipline that gives the Rule force.

People v. Williams, Second District, Div. 5, case no. B311161, filed 2/24/22, involves California Rule of Professional Conduct 3.3(a)(2). The Rule says

A lawyer shall not:…
(2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction
known* to the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel, or knowingly* misquote to a tribunal* the
language of a book, statute, decision or other authority

Rule 3.3(a)(2) was adopted in November 2018, part of the extensive revision of the California Rules of Professional Conduct to conform more closely to the American Bar Association Model Rules of Professional Conduct and adopts the text of Model Rule 3.3(a)(2), along with a second clause derived from former California Rule of Professional Conduct 5-200(c). Given the recent adoption of the Rule, it is not surprising that it has not been the object of any discipline enforcement. The model Rule, though, has been cited in the unpublished decision in Martin v. Stenger, a 2014 decision from the First Appellate Dist., Div. 2, (2014 WL 2211719).

Although California has not adopted the Model Rules, courts and [attorneys] find the rules … helpful and persuasive in situations where the [California rules] are unclear or inadequate.’ (1 Witkin, Cal. Procedure, supra, Attorneys, [§ 407, p. 521.] ) We are one of those courts. (See generally Fortune et al., Modern Litigation and Professional Responsibility Handbook (2001) § 8.5.1, pp. 329–330 [‘The obligation to disclose adverse legal authority is an aspect of the lawyer’s role as “officer of the court.” … lawyers should reveal cases and statutes of the controlling jurisdiction that the court needs to be aware of in order to intelligently rule on the matter. It is good ethics and good tactics to identify the adverse authorities, even though not directly adverse, and then argue why they are distinguishable or unsound. The court will appreciate the candor of the lawyer and will be more inclined to follow the lawyer’s argument’].)” We do not imply that either counsel acted knowingly or intended to mislead when they failed to cite Yang. We nevertheless remind counsel of their obligation.

Martin v. Stenger, unpublished slip opinion at pages 2-3

Williams involves a failure by counsel to cite what the Court of Appeal deemed controlling authority in the appeal, specifically case law finding the subject order not appealable. The decision reveals the frustration the Court of Appeal found with the lawyer’s response to the Court’s direction to submit a letter brief on the issue of whether Rule 3.3(a)(2) had been violated, frustration which led the Court of Appeal to make this a published decision with a stern warning:

An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor (where the authority is not otherwise brought to the attention of the court by another party to the appeal). Any such future violation, in the view of this court, may warrant disciplinary review by the State Bar or other corrective action.

People v. Williams, slip opinion at page 14-15

In adopting much of the ABA Model Rules, California has taken many of their “constitutive and descriptive” precepts and made them enforceable through the disciplinary process. Of course, the California Rules of Professional Conduct, although emphasizing their provenance as discipline rules since their original adoption in 1928, have always contained a lot of similar material, especially after the California Rules were re-written in response to the ABA Code of Professional Responsibility in 1975. But the Big Stick is always present, and the current mood of the discipline enforcers in the Office of Chief Trial Counsel means the discipline can never be ruled out. California lawyers who have not read the latest revision of the Rules of Professional Conduct practice are at some risk. Just ask the Second District Court of Appeal.

Remote Practice: in California, the Big Question Remains Unanswered

The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has written a proposed ethics opinion on remote practice that is now out for public comment, formal opinion interim number 20-0004. The scope of the issues addressed by the opinion is broadly framed: “What are a California lawyer’s ethical duties when working remotely?” The opinion digest responds broadly:

Remote practice does not alter a lawyer’s ethical duties under the California

Rules of Professional Conduct and the State Bar Act. Managerial lawyers must

implement reasonable measures, policies, and practices to ensure continued

compliance with these rules in a remote working environment, with a particular

focus on the duties of confidentiality, technology competence, communication,

and supervision.

Proposed formal opinion 2020-0004

The impetus for the opinion, like other opinions regarding remote practice, over the last two years (ABA formal opinion 495, New Jersey opinion 59/742, District of Columbia opinion 24-20) is the widespread adoption of remote work during the pandemic. The transition to remote work is hardly new; it has been going on ever since advanced information technology made geography irrelevant around 1995. California was one of the first states to address the phenomenon in the seminal Birbrower case in 1998, albeit in dicta that was not really related to the facts of the case:

Our definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state.   Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive.   For example, one may practice law in the state in violation of section 6125 although not physically present  here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.   Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law “in California” whenever that person practices California law anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite.  (See e.g., Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353 (Baron ) [“practice law” does not encompass all professional activities].)   Indeed, we disapprove Ring, supra, 70 P.2d 281, 26 Cal.App.2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion.   We must decide each case on its individual facts.

Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1998) 17 Cal. 4th 119, 128–29

Since the case had to do with New York lawyers who were physically, not virtually, present in California, the rationale behind this dicta is difficult to discern on the surface. Some, including amicus counsel for the petitioner New York law firm, thought the case presented an opportunity to undermine the outdated patchwork of individual jurisdictions jealously protecting their turf, a position opposed by the amicus for the client trying to get out of paying their bill, the State Bar of California, who advocated for a traditional California protectionist approach ( I was present at the oral argument.) The Birbrower dicta, accurate as it was, probably created more confusion than insight.

The existing trend toward remote work accelerated, by necessity, during the pandemic, and even the State Bar of California was part of the trend. Once work becomes remote, it can become truly remote by moving beyond a state boundary line. Remote work raises a number of issues not directly connected with the multi-jurisdictional practice (MJP) problem. The problem is that licensure is still handled by that patchwork of jurisdictions long after this approach stopped making sense.

These non-MJP problems are well addressed by 2020-0004. But 2020-0004 says only this about the MJP problem:

California licensed lawyers practicing California law remotely in another
state where they are not licensed should consult the multijurisdictional practice and unauthorized practice of law rules and authorities of the state where they are physically present.35 The ABA and some other state bar and local ethics committees have issued opinions regarding unauthorized practice of law considerations for attorneys remotely practicing the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted.

Proposed formal opinion 2020-0004, at page 7.

The Committee does helpfully attach a long footnote citing the many opinions from other jurisdictions that address remote practice, including MJP. But for lawyers licensed in other jurisdictions who are practicing remotely while in California, the Committee offers no guidance.

This is a big question. There are hundreds, perhaps thousands, of lawyers, admitted in other jurisdictions who are physically present in California and “virtually” practicing in their licensed jurisdictions to adopt the Birbrower language. The only guidance those lawyers have now is the limited guidance provided by California Rule of Professional Conduct 5.5(b): “A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.” Emphasis added.

What exactly does this language mean? Is practicing New York law for your New York clients from your home office in California a “systemic or continuous presence”? Can that lawyer use his residence address in California or establish a post office box in California for use in their “virtual practice” without “holding themselves out” as entitled to practice in California? Does this type of “virtual practice” violate their licensing jurisdiction’s version of ABA Model Rule 5.5(a)?: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

These are questions that need to be answered. But COPRAC is unable to. By direction of the Board of Governors (now Board of Trustees) in 1992, COPRAC cannot opine on questions involving the unauthorized practice of law. But if not COPRAC then who? Text or comments to Rule 5.5 could be added to clarify the meaning but in the normal course, those comments would be vetted through COPRAC. Would consideration of such clarifying language violate the Board’s directive? The Legislature could direct the State Bar to draft an amend Rule 5.5 or adopt a new Rule of Professional Conduct to submit to the California Supreme Court for adoption or a statute clarifying what constitutes the unauthorized practice of law. Given California’s protectionist proclivity, such Legislative activity seems very unlikely. There seems to be no procedural mechanism to directly request the Supreme Court to adopt new Rules of Professional Conduct.

So it appears that there is no way to get this question answered until some sweeping reform of multi-jurisdictional practice occurs to conform to reality. In the meantime, non-California licensed lawyers virtually practicing in California will continue a sort of shadow existence.

Is All Fair When Love Turns to War? Ethics Rules Say No

Some narrow issues were raised in the recent decision from the Fourth District of Court of Appeal, Division One, titled Shenefield v. Shenefield (case no. D078643, filed 2/24/22) and a bigger one as well.

The case involved a litigant in a marital dissolution matter who attached the confidential, court-ordered psychological evaluation undertaken during his spouse’s previous marital dissolution to a pleading filed by his lawyer. The spouse sought sanctions for violations of Family Code sections 3111, subdivision (d) and 3025.5, for unwarranted disclosure of the confidential custody
evaluation. Following trial, the Court issued sanctions against the litigant in the amount
of $10,000 and the litigant’s lawyer in the amount of $15,000. The trial court found that the litigant’s attorney was a ‘seasoned’ attorney who should have been aware of the Family Code statutes. She was reckless in filing the confidential and that she intended for the Court to rely on the confidential information from the prior, unrelated case. The lawyer challenged the sanction, arguing, among other things, that she was not a ‘party’ within the meaning of section 3111(d)(2). The Court of Appeal upheld the sanction, finding that California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person appearing in an action,” and it also notes that “party” “includes the party attorney of record.” The Court of Appeal also found no merit in the lawyer’s other arguments, that she was not afforded due process and that the opposing spouse had a duty to provide her the ‘safe harbor’ provided by Code of Civil Procedure section 128.7(c)(1) before moving for the sanction.

Good to know. But the bigger issue is highlighted in the part of the opinion that discusses an important piece of evidence at trial, a recording of a meeting between the litigants, Mark and Jennifer, and husband’s counsel. Jennifer did not have counsel.

On September 13, 2017, Mark pled guilty to violating Penal Code section 243, subdivision (e)(1), misdemeanor battery on a spouse. The Court issued a criminal protective order against Mark. The order contained the same terms as the restraining order, prohibiting Mark from contacting Jennifer or their child other than peacefully for visitation, and it authorized Jennifer to record any violations. Kovtun was Mark’s attorney of record in the criminal case. On September 28, 2017, Jennifer attended a meeting at Kovtun’s office with Mark and Kovtun. Jennifer recorded the meeting. During the course of the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother who was harmful to their child. When Jennifer said if Kovtun were not there, Mark would probably be beating her, Kovtun responded, “You know what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of [her] mind,” commented that living with Jennifer was like dealing with a lunatic, and called Jennifer crazy. Mark berated Jennifer, telling her that he was going to take their child away and get full custody, directing Jennifer to stop crying, and admonishing her that if she loved him, Jennifer would sign a custody agreement that would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s statements, commenting, “Yeah.” As a consequence of the September 28, 2017 meeting, Mark pled guilty to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018.

Shenefield, slip opinion filed 2/25/22 at page 23.

The trial court found that the recording did not violate Penal Code section 632 because it was authorized by the September 23, 2017, protective order. It relied on the recording to conclude that the lawyer was a seasoned family law lawyer and that she acted recklessly in allowing the confidential information from the prior custody evaluation to be filed. The Court of Appeal upheld those determinations.

Family law has always been difficult. Trends in society, the ongoing destruction of personal norms of appropriate behavior, the erosion of social trust, and the increased competition between lawyers for clients have made it more difficult. The lawyer-as-hired-gun meme still has currency, and it is often emphasized by lawyers themselves in their advertising, based on the idea that clients want aggressive lawyers. Many of my clients who are family law lawyers tell me that family law practice is uglier now than they ever seen it.

The ethical rules point in a different direction. Preamble 5 to the ABA Model Rules states that a “lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” California Rule of Professional Conduct 1.2.1 forbids a lawyer from counseling or assisting “a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Business and Professions Code section 6068(f) says that it is the duty of an attorney to “advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he or she is charged.” Subsection (g) says that a lawyer has a duty to “not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” California Rule of Professional Conduct 4.3 specifically addresses communication with unrepresented parties and states that a lawyer may not take advantage of an unrepresented party to stating or implying that he lawyer is disinterested and may not give an unrepresented party legal advice, where their interests conflict with the client, except the advice to obtain counsel. While not a binding rule, the State Bar of California Civility Guidelines state that “in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind. For example, a. An attorney should discourage and should not abet vindictive conduct. b. An attorney should treat all participants with courtesy and respect in order to minimize the emotional intensity of a family dispute.” Guideline 19.

No, all is not fair in love, war or the practice of law. They all have ethical rules that must be followed if we are to live in a world not governed by brute force.