The California State Bar is once again trying to add a "Consumer Alert" on certain California Attorney's member pages.
I believe this is a step to far.
As defense counsel that exclusively defends attorneys against the California State Bar, I find this new proposed rule to be not only a violation of an attorney's due process rights, but more than that I find that this rule can potentially destroy an attorney's practice even when the attorney is ultimately found to be not culpable of the alleged violation(s) in State Bar Court.
I am currently the 2nd Vice President of the Association of Discipline Defense Counsel (The Association of Discipline Defense Counsel is the bar association for lawyers who represent lawyers and others in disciplinary, admissions, and regulatory proceedings before the State Bar of California and the California Supreme Court), and we have submitted a public comment opposing this proposed rule.
To understand this proposed rule a little better, it is helpful to understand how it began.
The California State Bar first proposed and adopted consumer alert badges during the 2008/2009 mortgage crisis, wherein attorney misconduct involved serious client harm to a large group of people.
Although I still believe that consumer alert badges on a member's page are always a bad idea, the 2008/2009 consumer alert badges did make some logical sense, and at the time I saw good arguments on both sides.
However, the State Bar has taken this idea and now expanded it to include consumer alert badges on any member's page where even the slightest of allegations exist. They want to apply a consumer alert badge upon the filing of every Notice of Disciplinary Charges (“NDC”).
Even though the State Bar does state that the attorney has not be found in violation yet, common sense shows that a client (or potential client) might look at these consumer alerts a lot differently.
It is my position that this consumer alert will unfairly stigmatize the attorney and their practice.
I think any attorney would agree that the public needs to be protected from those who wish to take advantage of the public, but this consumer alert will affect even those who ultimately prove their case against the State Bar.
If discipline is ultimately found against the attorney then the "order" is published on their member page. However, as I stated above, this consumer alert is put on the member page prior to any finding of culpability and simply put on the page after the filing of the notice of disciplinary charges (the allegations document).
To give you a little context here, over 200 lawyers had their disciplinary proceedings dismissed in 2017 and 87 lawyers had their matters closed by the Court with non-disciplinary action in 2016 and 2017.
What makes this proposal worse is that the consumer alert badges are prominent and put in bright red at the top of the page before you even scroll down. This will obviously be the first thing any lay person sees. The State Bar thinks that this serves only as a warning, but again, common sense shows that this warning goes against the attorney's due process rights of his/her presumed innocence.
Remember that the Notice of Disciplinary Charges is already posted on the member's page, so why is there a need to put a bright red notice on the top of the page???
There is much more nuance to this rule that needs to be addressed and the ADDC has done a good job addressing those concerns on behalf of all California licensed attorneys.