When the State Bar decides to file charges based on a complaint which comes in from a client or other member of the public, the Notice of Disciplinary Charges initiates original proceedings before the State Bar Court.
Due process requires that OCTC provide notice of the charges to the respondent attorney in advance of filing the NDC. The respondent attorney has an opportunity to request an Early Neutral Evaluation to be conducted by a neutral State Bar Court judge before the NDC is filed with the State Bar Court. The respondent attorney is also entitled to receive the investigation file and the investigation report before charges are filed, but it is important to timely request production of the investigation before charges are filed.
The State Bar may open proceedings in State Bar Court to determine if an attorney’s conviction for a felony or misdemeanor involves moral turpitude or other misconduct warranting discipline. The case starts as a referral from the Review Department to the Hearing Department of the State Bar Court for a hearing on whether the attorney’s crime involved moral turpitude or other misconduct warranting discipline, and the appropriate level of discipline.
In serious cases, the State Bar Court can place an attorney on interim suspension based on an indictment, prior to conviction. Under Business and Professions Code Section 6101(a), an attorney’s conviction “of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.” An attorney may even face summary disbarment for an conviction for a felony involving moral turpitude where one of the elements of the crime is the specific intent to deceive and the felony involves the practice of law.
Where a crime does not involve moral turpitude, the State Bar has inherent power to impose discipline in cases involving other misconduct warranting discipline, such as multiple DUIs or domestic violence, where the court finds that discipline is necessary to “protect the profession and the public.”
MORAL CHARACTER DETERMINATIONS
An applicant who receives an adverse moral character determination can petition the State Bar Court to reverse the determination and find the applicant of good moral character. These proceedings are subject to specialized procedures and strict time deadlines. You need someone who knows how to navigate the rules to work with you to gain admission to the State Bar.
REINSTATEMENTS AND MINI-REINSTATEMENTS
A disbarred attorney or one who has been on actual suspension for two years or more must petition for reinstatement to the practice of law. The attorney has the obligation in a petition for reinstatement or mini-reinstatement to affirmatively establish that the attorney is fit to practice and has the requisite good moral character. The attorney will have to show rehabilitation. You need an experienced attorney who has handled many reinstatements to ensure you are putting together the best showing to regain entry to the practice of law.
RECIPROCAL DISCIPLINE CASES
An attorney has the duty to report to the State Bar any discipline imposed by any other State Bar or other jurisdiction. These cases proceed in State Bar Court as reciprocal discipline cases. Even where an attorney does not report the discipline imposed in other states, those jurisdictions report discipline to the State Bar. Failing to report the imposition of discipline is a separately disciplinable offense.
Under Business and Professions Code section 6049.1, the State Bar Court considers the following based at the hearing, based on the certified record from the jurisdiction which imposed the discipline:
- The degree of discipline to impose.
- Whether, as a matter of law, the member’s culpability determined in the proceeding in the other jurisdiction would not warrant the imposition of discipline in the State of California under the laws or rules binding upon members of the State Bar at the time the member committed misconduct in such other jurisdiction.
- Whether the proceedings of the other jurisdiction lacked fundamental constitutional protection.
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When you get a letter from the State Bar, don’t go it alone! You need competent, experienced counsel to respond to the State Bar at every stage. Your license is at risk, so ensure you have the best representation from a former State Bar prosecutor before sending any response to an investigator or responding to formal charges leveled by the State Bar. You cannot make an informed decision without good advice. Call Erin now.