This article originally appeared in the Daily Journal on March 26, 2018.
There are many ways to lose an appeal. Some attorneys prepare too little or too late. Other attorneys simply misunderstand some crucial procedural aspect of the appeals process. Such problems can occur in any type of appellate proceeding but are particularly acute in the appellate division of the State Bar Court of California. The court follows different procedural rules from other appellate courts — and attorneys brought before the court for discipline generally want desperately to avoid being there.
With luck you’ll never need to face the State Bar Court as the subject of disciplinary charges. But if you do, laying the ground work for a successful appeal starts in the trial court. If you are facing discipline, take time early in the process to look ahead and understand the following five things about State Bar Court appeals.
First, understand the basic structure of the State Bar Court. The trial and appellate divisions are referred to, respectively, as “hearing” and “review.” When a hearing judge finds an attorney culpable of misconduct, the judge can recommend to the California Supreme Court that the attorney be suspended or disbarred, or the court can impose the lesser sanction of reproval. If you want to challenge a hearing judge’s discipline recommendation, your first stop and best chance to succeed is in review, which consists of three full-time judges appointed by the California Supreme Court. Only after review judges have ruled can you petition the Supreme Court for review, but the Supreme Court only infrequently rejects State Bar Court discipline recommendations.
Second, learn the procedures. The State Bar Court maintains a resource rich website at www.statebarcourt.ca.gov. Foremost is the link to the rules of procedure and practice. During the appeals process, you must carefully follow rules 5.150 et seq. of the Rules of Procedure of the State Bar of California because they govern requests for interlocutory review of orders and plenary review of final decisions.
Of equal value on the website are the years’ worth of unpublished and published review decisions. If you’re defending yourself, you will start at a competitive disadvantage to your opponent — the State Bar attorneys are expert in the law of attorney discipline and appear regularly before review. Familiarizing yourself with the library of online decisions can close the gap. Don’t neglect the non-precedential, unpublished decisions, because those show how review has recently dealt with issues similar to the ones in your case and will help you identify good arguments and weed out likely non-starters.
Third, focus on the standard of review. The appellate branch of the State Bar Court (Review) conducts an independent review of final hearing decisions. Though review affords the hearing judge’s findings great weight, review must independently review the record and may “adopt findings, conclusions, and a decision or recommendation different from those of the hearing judge.” (Cal. Rules of Court, rule 9.12.) Independent review affords appellants wide latitude to challenge the hearing judge’s findings, even factual ones. So, it is worthwhile to bring any meaningful error or omission to review’s attention on appeal to support an argument that you are not culpable or should receive less severe discipline. Note that factual challenges must be made in the appellant’s brief with specific reference to the record or the issue is waived. (Rules Proc. of State Bar, rule 5.152(C).)
Of course, independent review can also be leveraged by bar attorneys. You must be prepared for the bar to appeal a hearing decision, challenge numerous findings and aggressively seek more severe discipline. Indeed, independent review permits review to recommend increased discipline even in cases where the attorney but not the bar has appealed. You should carefully consider this aspect of independent review when you decide whether to appeal or whether to accept the hearing recommendation — in some cases an appeal can actually hurt you.
Fourth, do not overlook the opportunity to improve your position. Unlike most appellate courts, review will consider facts that occurred even after the close of trial. This means that you can take steps to show you understand your misconduct and to demonstrate that you are not a risk to commit future misconduct. As appropriate to your case, you could return client files or refund fees, improve your billing or accounting practices, update your calendaring system, or take ethics training or substantive legal education. If substance abuse, financial or health problems factored into your misconduct, you can start or continue to address those issues. Any genuine effort undertaken to improve your ability to comply with the rules and laws governing attorney conduct can help your case.
But don’t let these self-improvement efforts go unnoticed. Procedural missteps can result in potentially mitigating evidence being left out of the record. To avoid this outcome, closely follow rule 5.156 of the Rules of Procedure of the State Bar when moving to introduce additional evidence into the record.
Fifth, understand the Standards for Attorney Sanctions for Professional Misconduct, which are also available on the State Bar Court website. The standards guide the State Bar Court’s disciplinary analysis. Persuasive use of the standards is essential to any successful request for less severe discipline. In your briefs and at oral argument, make specific reference to the applicable standards in your argument. Generalized assertions about your good intentions or abilities are unhelpful, as are ad hominem attacks on the hearing judge, the bar or your client.
State Bar Court appeals can be difficult but understanding the process from the outset will allow you to make your best case on appeal.
Jennifer Teaford is of counsel with the California Appellate Law Group LLP*, the largest appellate specialty boutique in Northern California. She previously served as a senior attorney and then as Assistant Chief Court Counsel in the appellate division of the State Bar Court of California. Find out more about Jennifer and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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