PURPOSE OF CALIFORNIA STATE BAR INVESTIGATION
The purpose of an investigation is to determine whether there is reasonable cause to believe that an attorney has violated a provision of the State Bar Act or the Rules of Professional Conduct, and if there is enough evidence to support the allegations of misconduct made by the complainant. (Note: The State Bar may initiate their own investigation without a formal complaint made by an outside person or entity. This usually occurs when the State Bar receives a referral by a Court that an attorney may be in rule violation, or when the State Bar is informed by your bank there is an issue with your Client Trust Account, or if the State Bar investigator finds additional incidents of potential rule violations.)
The Office of Chief Trial Counsel ("OCTC"), which is the investigative arm of the State Bar, will then assign an analyst then an investigator to your complaint.
Both and analyst and investigator gather evidence. While the analyst might make a determination after one response, the investigator will go much further.
The investigator will gather evidence by obtaining a detailed statement from the complainant, requesting documents from you and/or the complainant. Ask you for a complete copy of your client file. If the complaint is related to a failure to refund or a misappropriation, the State Bar may also subpoena your client trust account for bank statements and all offsets and debits.
INTAKE OF THE COMPLAINT
Once the State Bar receives the complaint, attorneys in the "Intake Department" of the OCTC will take a look at it and, if need be, assign it to one of a handful of complaint analysts to investigate the "inquiry."
The inquiry is the step prior to the State Bar deciding to transfer the inquiry to the investigation where it is no longer called an inquiry, but an actual investigation case with a separate case number. Complaint analysts will have way more inquiries on their plate, whereas an Investigator may be investigating 30 to 70 cases. The complaint analysts job is to weed out actual complaints that may have teeth, from complaints that don't, and to obtain some evidence prior to it being closed or sent to the Investigation phase
If it is determined that your file needs to be investigated further, it will leave the analysts hands and it will then get assigned to a different attorney (deputy trial counsel aka DTC) and one of their Investigators in the Enforcement Department.
There are defense pros and cons with having your particular complaint at either stage. Obviously if the complaint gets bumped up to the next stage, the stakes get that much higher for you. A good State Bar defense counsel should be very conscious of what stage the case is at, and be prepared to answer the Analyst or Investigator on your behalf.
YOUR RESPONSE TO THE COMPLAINT ALLEGATIONS
Prior to any filing of a notice of disciplinary charges (NDC), the State Bar must notify you in writing of the allegations that form the basis of the complaint. This notification are the letters you receive from the analyst and/or the investigator.
Your response is key. Not responding will give the State Bar grounds to file charges against you based on that fact alone.
In some cases, it may be important and strategic to ask for an opportunity to speak to the investigator, and possibly the DTC that oversees the investigation, in person. However, the State Bar will not let this in-person meeting be a substitute for a written response from you. Again, a good State Bar defense counsel experienced in dealing with several types of complaints will know how to handle your defense and whether or not to speak with the Investigator or DTC.
