PURPOSE OF INVESTIGATION
The purpose of an investigation is to determine whether there is reasonable cause to believe that a member of the State Bar has violated a provision of the State Bar Act or the Rules of Professional Conduct and if there is sufficient evidence to support the allegations of misconduct.
INITIATION OF INQUIRY OR INVESTIGATION
The State Bar may open an inquiry or investigation on its own accord or upon receipt of
a communication concerning the conduct of a member of the State Bar.
The Complainant is entitled to receive relevant information pursuant to the provisions of
the State Bar Act or the Rules of Procedure of the State Bar of California. In matters where communications from more than one person concern the same or substantially the same underlying conduct of the member, there may be more than one complainant.
The complainant may be, but is not limited to:
(a) a current or former client;
(b) one complaining on behalf of a current or former client;
(c) one owed or was owed a fiduciary duty and an alleged breach of the fiduciary
duty is or should be a subject of the investigation;
(d) member of the judiciary or legal professions who alleged misconduct by the
member which is or should be the subject of an investigation;
(e) a person who has significant new information about an alleged ethical violation
committed by the member affecting the professions, the administration of justice,
or the public.
MEMBER'S RESPONSE TO ALLEGATIONS
(a) Prior to the filing of a Notice of Disciplinary Charges, the Office of the Chief Trial
Counsel shall notify the member in writing of the allegations forming the basis for the complaint or investigation and shall provide the member with a period of not less than two weeks within which to submit a written explanation.
An extension of time for submission of the member's written explanation shall be granted only
upon written request to the Office of the Chief Trial Counsel and for good cause shown as to the specific constraints on the member's practice which are claimed to necessitate the additional time. This rule does not prohibit the Office of the Chief Trial Counsel from contacting a member by telephone for purposes of resolution of minor matters or investigation.
(b) In response to the Office of the Chief Trial Counsel's written notification pursuant
to paragraph (a), the member may provide a written response claiming any applicable constitutional or statutory privilege; however, the availability of an applicable constitutional or statutory privilege shall not excuse the member from submitting a written response to the Office of the Chief Trial Counsel to the extent necessary to identify and exercise the claimed privilege.
COMMUNICATIONS WITH CURRENT CLIENTS OF A MEMBER
(a) The staff of the Office of the Chief Trial Counsel may interview the current clients of
a member who is under investigation or is the subject of a disciplinary proceeding in the following limited circumstances:
(1) with the consent of the member or counsel;
(2) when the client has complained against the member or has initiated contact with the State Bar; or
(3) to determine whether he or she is a current client of the member. The contact shall cease if it is determined that the person is a current client.
(b) The Chief Trial Counsel or designee, may, in his or her discretion, authorize
interviews of current clients of a member upon a showing of good cause in writing.
REQUESTS FOR REVIEW
(A) What May Be Reviewed.
Unless expressly provided otherwise in the rules governing a particular type of proceeding, all decisions and orders by hearing judges that fully dispose of an entire proceeding are reviewable by the Review Department at the request of any party under this rule.
Any party may file and serve a request for review within 30 days after the hearing judge's decision or order is served. If a post-trial motion is filed in the Hearing Department, a party seeking review must file and serve the request within 30 days after the hearing judge's ruling on the post-trial motion is served.
(C) Post-Trial Motion After Request Filed.
If a post-trial motion about a decision is filed in the Hearing Department after a request for review is filed, any request for review of that decision will be vacated and the requesting party must file another request for review after the hearing judge's ruling on the post-trial motion is served.
(D) Certification and Transcript.
Unless otherwise ordered by the Presiding Judge, the request for review must certify that a trial transcript has been ordered and payment has been made as required under the Rules of Practice of the State Bar Court. Unless otherwise ordered by the Presiding Judge, if the party requesting review fails to timely order a transcript or to timely pay the required transcript cost, the Clerk will notify the party that the request will be dismissed unless, within five days after the Clerk's notice is served, the party: (1) tenders the required cost, or (2) upon a motion and showing of good cause, obtains an order from the Court granting an extension of time or permitting other arrangements satisfactory to the Court.
(E) Additional Parties' Requests for Review.
If any party files a request for review under rule 5.151, any opposing party may file a request for review within 10 days after the first party's request for review is served.
(F) Multiple Requests for Review.
If more than one party requests review, the requesting parties will equally divide the cost of the transcript. Each will file an appellant's brief under rule 5.152 and a responsive brief under rule 5.153(A). Each may file a rebuttal brief under rule 5.153(B).
(G) When Review Is Permitted.
Except as expressly permitted by these rules, no action of a hearing judge is reviewable by the Review Department until after the hearing judge enters a decision or order fully disposing of the entire proceeding.
REIMBURSEMENT TO CLIENT SECURITY FUND
In any disciplinary recommendation or order, the Court must include a recommendation or order that the member reimburse the Client Security Fund for any funds paid out under Business and Professions Code §6140.5 because of the member's misconduct.
Unless the Supreme Court orders otherwise or unless relief has been granted under these rules, the ordered reimbursement must be paid within 30 days after the effective date of the final disciplinary order or within 30 days after the Client Security Fund payment is disbursed, whichever is later.
MANDATORY REMEDIAL EDUCATION IN ETHICS
(A) State Bar Ethics School.
A member must satisfactorily complete the State Bar Ethics School in all dispositions or decisions imposing discipline, unless the member has completed the course within the prior two years or the Supreme Court orders otherwise.
(B) Comparable Alternative.
If a member resides in another jurisdiction and is unable to attend the State Bar Ethics School, the member may seek authorization to attend a comparable remedial education course offered
through a certified provider in the other jurisdiction by obtaining the prior approval of the Office of the Chief Trial Counsel and final approval of the State Bar Court.
PUBLIC AND PRIVATE REPROVALS
(A) Stipulation and Reproval.
The Court's decision or order approving a stipulation may include a reproval that takes effect when the decision or order is final. The decision or order must specify whether the reproval is public or private.
(B) Public Reproval.
A public reproval is part of the member's official State Bar membership records, is disclosed in response to public inquiries, and is reported as a record of public discipline on the State Bar's web page. The record of the proceeding in which the public reproval was imposed is also public.
(C) Private Reproval Before Notice of Disciplinary Charges.
A private reproval imposed before a State Bar Court proceeding begins is part of the member's official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar's web page.
The record of the proceeding is not available to the public unless it becomes part of the record of any later proceeding in which it is introduced as evidence of a prior record of discipline. The member is not obligated to pay discipline
(D) Private Reproval After Notice of Disciplinary Charges.
A private reproval imposed on a memberafter the initiation of a State Bar Court proceeding is
part of the member's official State Bar membership records, is disclosed in response to public inquiries and is reported as a record of public discipline on the State Bar's web page. The complainant is informed of the imposition of the private reproval. The member is not obligated to pay discipline costs.
(A) When Permissible.
The Court may resolve a matter by an admonition to the member if the subject matter of a pending disciplinary proceeding does not involve a Client Security Fund matter or a serious offense, and the Court concludes that the violation(s) were not intentional or occurred under
mitigating circumstances, and no significant harm resulted.
(B) “Serious Offense” Defined.
“Serious offense” means conduct involving dishonesty, moral turpitude, or corruption, including bribery, forgery, perjury, extortion, obstruction of justice, burglary or related offenses, intentional fraud, and intentional breach of a fiduciary relationship.
A copy of the admonition or news of its issuance must be sent to the complainant, complainant's counsel (if any), and the deputy trial counsel. The State Bar or the State Bar Court will not actively publicize it otherwise. But unless otherwise ordered, the file in a public proceeding will remain public.
(D) Not Discipline.
The giving of an admonition is not equal to imposing discipline on the member.
(E) Who May Request Admonition.
Any party may move for an admonition, or the parties may make a joint motion. If the motion is made jointly, it must be accompanied by a stipulation under rule 5.56.
(F) Reopening Proceedings.
If within two years after the effective date of an admonition the member allegedly commits misconduct that results in another disciplinary proceeding, then within 30 days after the new proceeding begins, the Office of the Chief Trial Counsel may file a motion to reopen the proceeding resolved by admonition. All applicable time limitations are tolled between the issuance of the admonition and the filing of the order granting the motion to reopen.
RESPONSE TO NOTICE OF DISCIPLINARY CHARGES
(A) Time to File Response.
Unless the time is extended by Court order or stipulation, the member must file and serve a written response to the notice of disciplinary charges within 20 days after it is served. Except for motions authorized by rule 5.124(C), demurrers and motions for further particulars are not allowed.
(B) Stipulated Extension.
The parties may agree once to extend the time for filing a response by up to 15 days without a Court order. They must file a signed, written stipulation with the Clerk before the original expiration date.
(C) Content of Response.
The response must contain an address for service on the member in the proceeding and either:
(1) a specific admission or specific denial of the allegations in the notice and other facts relevant to a defense; or (2)
a plea of nolo contendere, signed by the member and the member's attorney, stating that the member understands that he or she effectively admits that the facts alleged in the notice are true, and he or she is culpable of the misconduct. The State Bar Court must approve this plea.
If the member fails to file a timely response or move to extend the time to respond, the deputy trial counsel may proceed by default.
NOTICE OF DISCIPLINARY CHARGES
(A) Initial Pleading.
A notice of disciplinary charges is the initial pleading in a disciplinary proceeding, unless specified otherwise in the rules.
The notice of disciplinary charges must: (1) cite the statutes, rules, or Court orders that the m
ember allegedly violated or that warrant the proposed action; (2) contain facts, in concise and ordinary language, comprising the violations in sufficient detail to permit the preparation of a defense; no technical averments or any allegations of matters not essential to be proved are required; (3) relate the stated facts to the statutes, rules, or Court orders that the member allegedly violated or that warrant the proposed action; (4) contain a notice that the member may be ordered to pay costs; and (5) contain the following language in capital letters at or near the beginning of the notice:
“IF YOU FAIL TO FILE A WRITTEN ANSWER TO THIS NOTICE WITHIN 20 DAYS AFTER SERVICE, OR IF YOU FAIL TO APPEAR AT THE STATE BAR COURT TRIAL:
(1) YOUR DEFAULT WILL BE ENTERED;
(2) YOUR STATUS WILL BE CHANGED TO INACTIVE AND YOU WILL NOT BE PERMITTED TO PRACTICE LAW;
(3) YOU WILL NOT BE PERMITTED TO PARTICIPATE FURTHER IN THESE PROCEEDINGS UNLESS YOU MAKE A TIMELY MOTION AND THE DEFAULT IS SET ASIDE; AND
(4) YOU WILL BE SUBJECT TO ADDITIONAL DISCIPLINE. SPECIFICALLY, IF YOU FAIL TO TIMELY MOVE TO SET ASIDE OR VACATE YOUR DEFAULT, THIS COURT WILL ENTER AN ORDER RECOMMENDING YOUR DISBARMENT WITHOUT FURTHER HEARING OR PROCEEDING. (SEE RULE 5.80 ET SEQ., RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA.)
PREFILING, EARLY NEUTRAL EVALUATION CONFERENCE
(A) Early Neutral Evaluation Conference.
Prior to the filing of disciplinary charges, the Office of the Chief Trial Counsel will notify the member in writing of the right to request an Early Neutral Evaluation Conference.
Either party may request an Early Neutral Evaluation Conference. A party will have 10 days from the date of service of notice to request a conference. The time is not extended by the method of computing time set forth in Rule 5.28(A). Failure to request a conference within that time is deemed a waiver of the right to request a conference. If proper notice is provided, failure to hold a conference will not be a basis for dismissal of a proceeding. A State Bar Court hearing judge will conduct the conference within 15 days of the request.
(B) Judicial Evaluation.
At the conference, the judge must give the parties an oral evaluation of the facts and charges and the potential for imposing discipline. If the parties then resolve the matter in a way that requires Court approval, the Office of the Chief Trial Counsel must document the resolution and submit it to the Evaluation judge for approval or rejection.
The Office of the Chief Trial Counsel must submit a copy of the draft notice of disciplinary charges, or other written summary to the judge prior to the conference. The documentation must include the rules and statutes alleged to have been violated by the member, a summary of the facts supporting each violation, and the Office of the Chief Trial Counsel's settlement position. Each party may submit documents and information to supports its position.
The conference is confidential. A party may designate any document it submits for in camera inspection only.
(E) Trial Judge.
Unless otherwise stipulated by the parties, the Early Neutral Evaluation judge cannot be the trial judge in a later proceeding involving the same facts.
A State Bar Court proceeding begins when a party files the initial pleading.
(A) Time Limit for Complaint.
If a disciplinary proceeding is based solely on a complainant's allegations of a violation of the State Bar Act or Rules of Professional Conduct, the proceeding must begin within five years from the date of the violation.
(B) When Violation Occurs.
The State Bar Act or a Rule of Professional Conduct is violated when every element of a violation has occurred. But if the violation is a continuing offense, the violation occurs when the offensive conduct ends.
The five-year limit is tolled while: (1) the member represents the complainant, the complainant's family member, or the complainant's business or employer; (2) the complainant is a minor, insane, or physically or mentally incapacitated; (3) civil, criminal, or administrative investigations or proceedings based on the same acts or circumstances as the violation are pending with any governmental agency, court, or tribunal; (4) the member conceals facts about the violation; (5) the member fails to cooperate with an investigation of the violation; (6) the member makes false or misleading statements to the State Bar concerning the violation; (7) the disciplinary investigation or proceeding is abated under rule 5.50 (8) the member is participating in an Alternative Dispute Resolution Mediation Discipline program, Agreement in Lieu of Discipline Prosecution program, or other authorized diversion program; (9) the investigation is ended by admonition; or (10) the complaint or investigation is pending before the Audit and Review Unit.
(D) Authorized Diversion Program.
If the member successfully completes an Alternative Dispute Resolution Mediation Discipline program, Agreement in Lieu of Discipline Prosecution program, or other authorized diversion program, the underlying allegations are barred.
(E) Audit and Review Unit.
The State Bar must begin disciplinary proceedings within two years after proceedings before the Audit and Review Unit conclude.
(F) Death of Complainant.
If a prospective complainant dies before the time to begin a disciplinary procedure expires, a surviving family member or the estate's executor or administrator may file a complaint with the State Bar within two years after the complainant's death.
(G) Independent Source.
The five-year limit does not apply to disciplinary proceedings that were investigated and initiated by the State Bar based on information received from an independent source other than a complainant.
The member and State Bar may agree in writing to waive or extend the limitations in this rule.
(I) Reinstatement Proceedings.
This rule does not apply to reinstatement proceedings.