by Heather Porter Condon
This past May, the California State Bar Board of Trustees approved a revised set of Standards for Attorney Sanctions for Professional Misconduct (the Standards). While the Standards underwent an overall clean-up and reorganization last year, this recent revision marks the first real substantive change since the adoption of the initial set of Standards for attorney discipline nearly thirty years ago in 1986. The revised Standards became effective on July 1, 2015.
The Standards, in both their original and revised form, are used to determine the appropriate sanctions in cases involving attorney misconduct. Based on the State Bar Act, the published opinions of the Review Department of the State Bar Court, and the decisions of the California Supreme Court, the Standards were adopted “to set forth a means for determining the appropriate disciplinary sanction in a particular case and to ensure consistency across cases dealing with similar misconduct and surrounding circumstances.” Attorney Standards of Prof. Misconduct, Part A—Standard 1.1. In this way, the Standards “help fulfill the primary purposes of discipline, which include: (a) protection of the public, the courts, and the legal profession; (b) maintenance of the highest professional standards; and (c) preservation of public confidence in the legal profession.” Id.; see also In re Kreamer, 14 Cal. 3d 524, 532 (1975).
In principle and in practice, the Standards serve as “guidelines” for the imposition of discipline in cases involving attorney misconduct. Greenbaum v. State Bar, 43 Cal. 3d 543, 550 (1987). Although not binding, the Standards “promote the consistent and uniform application of disciplinary measures.” In re Silverton, 36 Cal. 4th 81, 91 (2005) (quoting In re Morse, 11 Cal. 4th 184, 206 (1995)).
Indeed, since their adoption, the Standards have been given substantial deference by the State Bar Court and the California Supreme Court. In that vein, the newly revised Standards mandate that the California Supreme Court “accept a disciplinary recommendation that is with the Standards unless it has grave doubts about the propriety of the recommended sanction.” Attorney Standards of Prof. Misconduct, Part A—Standard 1.1; see also In re Lamb, 49 Cal. 3d 239, 245 (1989) (“‘[W]e will not reject a recommendation arising from application of the Standards unless we have grave doubts as to the propriety of the recommended discipline. ...’” (quoting Lawhorn v. State, 43 Cal. 3d 1357, 1366 (1987)); In re Silverton, 36 Cal. 4th at 91-92. Indeed, “[a]ny disciplinary recommendation that deviates from the Standards must include clear reasons for the departure.” Attorney Standards of Prof. Misconduct, Part A—Standard 1.1; see also Blair v. State Bar, 49 Cal. 3d 762, 776 n.5 (1989).
In short, while still allowing for the necessary flexibility in deciding each case based on its own unique facts and circumstances in assigning any such resulting sanctions, the Standards provide a methodology for determining effective and consistent discipline in cases involving attorney misconduct in this state. As revised, there is no doubt that the Standards are built upon these underlying principles. In view of that, this article summarizes the most significant recent changes to the Standards.
In general, and as explained in detail below, the most significant substantive changes to the Standards are reflected in the section entitled “Sanctions for Specific Misconduct.” As before, this section sets out specific, presumed sanctions for various acts of professional misconduct. In addition to those individual acts of misconduct previously listed, the Standards now incorporate a number of additional specific acts that either were not previously considered in the earlier version or were formerly included in a single catch-all provision. These additional offenses, and their corresponding presumed sanctions, are as follows:
Representation of Adverse Interests: (a) Actual suspension is the presumed sanction when a member accepts or continues simultaneous representation of clients with actual adverse interests, where the member: (1) fails to obtain informed written consent of each client, and (2) causes significant harm to any of the clients. (b) Actual suspension is the presumed sanction when a member accepts employment that is actually adverse to a client or former client, where the member: (1) fails to obtain informed written consent, (2) breaches the duty to maintain confidential information material to the employment, and (3) causes significant harm to the former client. Attorney Standards of Prof. Misconduct, Part B—Standard 2.5 (a)-(b).
Breach of Confidentiality: (a) Suspension is the presumed sanction when a member intentionally reveals client confidences or secrets. (b) Reproval is the presumed sanction when a member recklessly or through gross negligence reveals client confidences or secrets. Id. at Standard 2.6 (a)-(b).
Fee-Splitting with Non-Lawyers: Actual suspension is the presumed sanction when a member shares legal fees with a non-lawyer. The degree of sanction depends upon the extent to which the misconduct interfered with an attorney-client relationship and the extent to which the member failed to perform legal services for which he or she was employed. Id. at Standard 2.8.
Frivolous Litigation: (a) Actual suspension is the presumed sanction when a member counsels or maintains a frivolous claim or action for an improper purpose, resulting in significant harm to an individual or the administration of justice. Disbarment is appropriate if the misconduct demonstrates a pattern. (b) Suspension or reproval is the presumed sanction when a member counsels or maintains a frivolous claim or action for an improper purpose, resulting in harm to an individual or the administration of justice. Id. at Standard 2.9 (a)-(b).
In addition to the incorporation of these new acts of specific misconduct, the Standards also revise the presumed sanctions associated with a number of already existing acts of misconduct.
Misappropriation: As revised, the presumed sanction for the misappropriation of entrusted funds or property, where such misappropriation involves gross negligence, is now limited to actual suspension (as compared to the earlier version which expanded the appropriate sanctions to include both disbarment and actual suspension). Id. at Standard 2.1 (b). Now, as drafted, the sanction of disbarment in a case involving misappropriation is appropriate only where the misappropriation is “intentional or dishonest.” Id. at Standard 2.1 (a).
Performance, Communication, or Withdrawal Violations: Among other changes captured in the recitation of the text here, the Standards now include “withdrawal violations” in the section addressing violations involving acts of performance or communication. In full, the section now provides for the following presumed sanctions: (a) Disbarment is the presumed sanction for performance, communication, or withdrawal violations demonstrating habitual disregard of client interests. (b) Actual suspension is the presumed sanction for performance, communication, or withdrawal violations in multiple client matters, not demonstrating habitual disregard of client interests. (c) Suspension or reproval is the presumed sanction for performance, communication, or withdrawal violations, which are limited in scope or time. The degree of sanction depends on the extent of the misconduct and the degree of harm to the client or clients. Id. at Standard 2.7 (a)-(c).
Moral Turpitude, Dishonesty, Fraud, Corruption, or Concealment: As now drafted, the section setting forth sanctions for the above incorporates acts involving “intentional or grossly negligent misrepresentation,” in addition to those acts of moral turpitude, dishonesty, fraud, corruption, and concealment of a material fact. Additionally, Standard 2.11 now includes “the impact on the administration of justice” as a factor used to determine the degree of appropriate sanction. Id. at Standard 2.11.
Violation of Oath or Duties of an Attorney: Acts involving the maintenance of frivolous litigation which were previously included within this seemingly all-encompassing provision are now addressed in a separate section specific to such acts, Standard 2.9. Id. at Standard 2.12 (d).
Criminal Conviction for Specific Misdemeanors: This section no longer contemplates the sanctions associated with convictions of misdemeanors specified in Business and Professions Code sections 6154 and 6155. Id. at Standard 2.17 (b).
Other sections that underwent substantive changes are those sections entitled Definitions and Aggravating Circumstances.
Definitions: In addition to bolstering a number of the already existing definitions, the revised Standards also add a number of newly defined terms. First, once combined into a single term, the Standards now distinguish between “public” and “private” reproval; the first being defined as “public censure or reprimand” and the second as “censure or reprimand that is not a matter of public record unless imposed after the initiation of formal disciplinary proceedings.” Attorney Standards of Prof. Misconduct, Part A—Standard 1.2 (d)-(e). The term “interim remedies,” defined as “temporary restrictions imposed by the State Bar Court on a member’s ability to practice law,” is also added to the Standards’ list of defined terms. Id. at Standard 1.2 (f). And, finally, the new Standards add the term “probation,” which is defined as “a period of time under which a member is subject to State Bar supervision ... [and which] may include conditions that further the primary purposes of discipline.” Id. at Standard 1.2 (j).
Aggravating Circumstances: Although each case involving attorney misconduct is decided on its own facts, the revised Standards make it clear that the presumed sanctions establish a baseline for the imposition of appropriate discipline. Such sanctions can, and should, be adjusted in accordance with various factors in aggravation or mitigation, as well as with the balancing of individual facts and circumstances unique to each case. In this way, the newly revised Standards list two additional aggravating factors that, once established by clear and convincing evidence, warrant a greater degree of discipline than otherwise provided by the applicable Standards. Those newly added aggravating circumstances are: “misrepresentation” and “high-level of vulnerability of the victim.” Attorney Standards of Prof. Misconduct, Part A—Standard 1.5 (e) and (n).
While the above summarizes what presumably are the most significant revisions to the Standards, the complete set of Standards, in their revised form, can be located through the California State Bar website.
Heather Porter Condon is a freelance attorney with the Montage Legal Group and a member of the OCBA Professionalism and Ethics Committee. She may be reached at firstname.lastname@example.org.