Bar's new discipline standards offer guidance on punishing lawyer misconduct

By Don J. DeBenedictis

Daily Journal Staff Writer

The brand-new version of the State Bar's discipline standards deserves more attention
than earlier ones, experts say.

The standards are, more or less, the sentencing guidelines for California's lawyer
discipline system. Although they are not binding, the State Bar Court and bar prosecutors
regularly repeat that the standards "are entitled to 'great weight' and should be
followed 'whenever possible' in determining level of discipline," as instructed by
the Supreme Court.

Most lawyers don't know they exist and don't need to know, unless they get into trouble,
said Karen M. Goodman, the Sacramento malpractice defense attorney who headed the
special task force that rewrote the standards over the last year.

Yet one goal of Goodman's group was to draw lawyers' attention to certain kinds of
misconduct that weren't specifically dealt with in earlier versions. "We wanted to
be able to highlight what was important for the public," she said. "We wanted to make
sure that these things are important."

So for the first time, the standards specifically detail the appropriate discipline
a lawyer deserves for representing adverse interests, breaching client confidentiality,
sharing fees with a nonlawyer and maintaining frivolous litigation.

Those are "the ones that really affect the public," Goodman said. Earlier versions
of the standards "didn't have anything that dealt directly with the specific duties
of a lawyer."

The task force saw its goal as updating and improving the existing set of standards,
not creating new ones. So adding in new suggested punishment for breaches of those
important duties turned out to be controversial.

One member of the task force, malpractice and discipline defense attorney Steven A.
Lewis, objected strongly to creating punishment guidance for conflicts of interest.

New Standard 2.5 says a lawyer should presumably be suspended for a period of time
if he represents adverse parties in a matter without consent and if doing so causes
significant harm. Suspension is also "the presumed sanction" for a lawyer who does
all that with respect to a former client and also breaches a client's confidentiality.

Lewis does not oppose punishing lawyers who commit such obvious wrong. His concern
is technical.

The discipline standards are supposed to be based on existing law and on published
decisions from the Supreme Court and State Bar Court - as the very first section of
the new standards announces.

The problem with a standard covering "representation of adverse interests" is that
there are only two cases on point, and they are old and have especially egregious
facts, Lewis said.

The task force shouldn't be creating discipline guidance out of whole cloth, he said,
at least without making clear that it was doing so. "To me, that's a level of intellectual
dishonesty," he said.

Lewis said the courts have steered clear of disciplining lawyers for conflicts of
interest, which is why there are so few judicial decisions. Goodman said the State
Bar has not gone after that sort of malfeasance.

And yet, it's a problem that surfaces often. The issue shows up regularly in motions
to disqualify large firms from litigation, especially large firms with many corporate
clients in related industries.

Lewis said it's just those sorts of disqualification disputes that make discipline
difficult and, arguably, unnecessary. "Really good judges and really good lawyers
end up with very different opinions about how the law should apply."

David Cameron Carr, a discipline defense lawyer in San Diego who followed the standards
task force process, said he has seen complaints come into the State Bar against lawyers
who have been disqualified. Those complaints often seem to go nowhere, he said.

After all, he said, what's the value of pursuing a lawyer who's already been kicked
off a case?

On the other hand, he added, the task force might have felt that the new standard
is needed just because conflicts and disqualifications happen often, particularly
at large firms. "There's a sense that there's a lot of this going on" without bar
prosecutors paying attention.

The new standard might be "an interesting way to backdoor policy," Carr suggested.

When lawyers are disciplined for representing two sides in a dispute or the like,
they have frequently drawn punishment for all the other, related misconduct they've
committed, he and Goodman said.

Further, the standards have long had a couple of "catch-all" provisions that recommend
reproval or suspension for up to three years for lawyers who violate a conduct rule
without its own standard.

Lewis did not object to the new standard covering breaches of confidentiality. There
is quite a bit of case law on that topic, he said.

Standard 2.6 now says that "suspension is the presumed sanction when a member intentionally
reveals client confidences or secrets," while reproval should follow "when a member
recklessly or through gross negligence reveals client confidences or secrets."

A lawyer who doesn't perform his duties for a client, doesn't communicate with a client
or withdraws from a client's matter improperly might be disbarred, suspended or just
reproved under Standard 2.7 depending on whether the misconduct was habitual or rare.

Generally, the suggested discipline for most types of misconduct is fairly broad.
Only four of the 19 standards dealing with particular types of misconduct specify
a particular length of time for a lawyer to be suspended.

The bar's Board of Trustees formally adopted the new standards last week. They take
effect July 1.

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