This article originally appeared in the Daily Journal on July 22, 2019.
California is unique. It is the only state with a court whose judges are dedicated solely to considering attorney admission and discipline matters. The California Supreme Court reviews the recommendations of that court, the State Bar Court of California, but rarely rejects them. So, as a practical matter, the appellate division of the State Bar Court (which is known as the review department) has the final say on admission and discipline cases, and its views impact all applicants for admission and attorneys facing discipline.
Three full-time judges sit on the current review department panel: Presiding Judge Catherine Purcell, Review Judge Richard Honn, and Review Judge W. Kearse McGill. In addition, Review Judge Pro Tem Ronald Stovitz occasionally serves on the panel. The three full-time judges have more than 30 years combined experience ruling on attorney admission and discipline matters. Working together since Nov. 1, 2016, they have issued 34 unpublished and three published disciplinary opinions. A review of these decisions provides five noteworthy takeaways about this panel’s approach to discipline.
First, the panel has not hesitated to increase discipline on appeal. Both sides have the right to appeal the decision of the trial-level hearing judge — attorneys who have been found culpable of misconduct may appeal the discipline imposed, and the State Bar’s prosecutor’s office can appeal the level of discipline and, if the hearing judge found no misconduct, may appeal the dismissal. Though the review department affords the hearing judge’s findings great weight, the panel 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.)
The current panel has regularly exercised its independent review authority in the bar’s favor. The bar sought review in 13 of the 37 disciplinary cases. In 11 of those cases, the panel increased the recommended discipline. In four cases, the panel increased the recommendation from suspension to disbarment. In five cases, the panel significantly increased the length of suspension. In one case, the panel changed a stayed suspension to an actual suspension, and in another case, the panel found a reproval to be too lenient and recommended suspension instead.
Second, less frequently, independent review has worked dramatically in the attorney’s favor. On seven occasions, the panel recommended less serious discipline, including twice downgrading disbarment to suspension. The panel also dismissed two attorney’s cases outright because it found no culpability.
Third, the current panel has rarely departed from the Standards for Sanctions for Professional Misconduct, which were adopted by the State Bar Board of Trustees as a means to ensure consistency across cases dealing with similar misconduct and surrounding circumstances. These standards set forth a presumed sanction for specific acts of misconduct and are meant to protect the public, promote confidence in the legal profession, and maintain high professional standards. Under Supreme Court precedent, the State Bar Court is obligated to follow the standards whenever possible and explain its reasons when it departs from the presumed sanction.
The current panel has departed from the standards just three times. Twice, the panel recommended suspension even though the attorney had been disciplined on two prior occasions and thus would have been subject to disbarment under the standards. In both cases the panel reasoned that the attorney was not the type of recidivist that the standard was designed to remove from practice. On another occasion, the panel ordered a public reproval rather than a suspension for a public defender who failed to report that she had previously been sanctioned. The panel took into account that an episode of emotional distress caused the misconduct, the attorney’s 15-years of dedicated public service without discipline, her volunteer work, her extraordinary good character, and her skill as an attorney.
Of note, the current review department panel has never departed from the presumed standard of disbarment where an attorney intentionally misappropriated client funds. In all nine cases involving misappropriation of client funds the panel recommended disbarment.
Fourth, where the standard provides for a range of discipline, this panel has often exercised its considerable discretion to differ from both the State Bar’s request and the hearing judge’s recommendation. For example, in one case, a hearing judge found that an attorney’s criminal conviction for misdemeanor domestic violence involved moral turpitude. The presumed sanction ranged from suspension to disbarment, and the hearing judge recommended disbarment as requested by the bar. The attorney sought review. The panel affirmed the moral turpitude finding and agreed that the hearing judge applied the correct disciplinary standard. But the panel viewed disbarment as excessive and recommended a two-year suspension. The panel emphasized mitigating circumstances in the attorney’s favor, including that he had no discipline history and that he presented substantial evidence of good character. Interestingly, Presiding Judge Purcell concluded that a three-year suspension was appropriate. In her concurrence and dissent, she emphasized that the attorney had been dishonest and caused his girlfriend physical and emotional harm.
Compare that to another criminal conviction case. The hearing judge found that an attorney’s misdemeanor DUI conviction did not involve moral turpitude and ordered a private reproval. The bar appealed, seeking a three-month suspension. The panel agreed that no moral turpitude was involved and that the hearing judge applied the correct standard. But the panel concluded that the hearing judge had been too lenient and, comparing the case to other DUI cases, settled on a one-year stayed suspension — less discipline than requested by the bar, but more than ordered by the hearing judge.
The final takeaway is that this panel has affirmed hearing department discipline recommendations just under 50 percent of the time. Given the odds that things will change on review, attorneys facing discipline should work with experienced counsel at the appellate stage to seek a better outcome and to protect against the risk of a worse one.
Jennifer Teaford is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. 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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