Full Disclosure

By Thomas Brom
     
      Second Chances
      F. Scott Fitzgerald famously wrote that there are no second acts in American lives. But for the past decade, the State Bar's discipline system has been struggling with the question of whether there should be second chances, at least for attorneys who resign or are disbarred.
      The issue arose last August when the State Bar's Board of Governors voted to permit the recommendation of permanent disbarment?the profession's disciplinary equivalent of the death penalty. Debated and then tabled by the board since 1996, permanent disbarment reappeared as an agenda item at the urging of the state Supreme Court after it disbarred, for the second time, an attorney whose most recent misconduct started less than two years after he was reinstated. (In re Silverton, 36 Cal. 4th 81 (2005).) Despite intense opposition by the Los Angeles County Bar Association, the board recommended that the state Supreme Court adopt rule 951.2, which permits permanent disbarment for any one of seven categories of crimes and misconduct.
      Within months, the State Bar Court raised the issue of second chances again with a seemingly innocuous procedural measure, rule 323, which would shift from the Board of Governors to the court's Review Department the responsibility for recommending action on resignations submitted with disciplinary charges pending. The court argued that with attorney resignations running about five to seven a month, the board had insufficient time to adequately review them. It also noted that in 1986 the board had adopted a resolution recommending acceptance of virtually all resignations, making review superfluous.
      Coming so soon after the board's vote to permit permanent disbarment, rule 323 seemed to the state's respondents bar like piling on. "The proposed rule appears to be part of a broad policy at the Office of the Chief Trial Counsel to crack down on everyone," says Jerome Fishkin, a respondents attorney at Fishkin & Slatter in Walnut Creek. "We're seeing higher levels of discipline across the board, we're settling fewer cases, and we're seeing mean-spirited behavior by prosecutors. The whole office has gotten tough."
      California courts have long recognized the value of rehabilitation, leaving open the possibility that lawyers may be reinstated after either disbarment or resignation. But resignations are a touchy subject because there is no public record of charges pending, and no admission of culpability by the respondent. Should the attorney apply for reinstatement, the file may be reopened?though perpetuation proceedings rarely occur.
      "Resignation is basically a five-year suspension," says Robert C. Fellmeth, a professor at the University of San Diego School of Law's Center for Public Interest Law and former bar discipline monitor. "You could game the system with an early resignation."
      Respondents attorneys maintain that it's not possible to game the system, that attorneys most often choose resignation to avoid public humiliation. "Only about 4 percent of attorneys who resign or are disbarred are ever reinstated," says David Cameron Carr, a respondents attorney in San Diego. (Figures from the State Bar's 2005 Discipline Report show that 718 lawyers were disbarred or resigned between 2001 and 2005, and only 32 lawyers were reinstated during the same period.) To win reinstatement for a disbarred or resigned attorney, Carr adds, "you have the burden of showing clear and convincing evidence of rehabilitation. I can't say I've ever seen a successful way to game the system."
      Adds Diane Karpman, a legal-ethics expert and respondents attorney in Los Angeles, "Rule 323 is the beginning of restrictions on the right to resign. The number of options for an attorney faced with serious discipline is decreasing."
      The proposed rule provides the Office of the Chief Trial Counsel with a motion procedure by which it can present evidence to the Review Department in support of a recommendation to not accept a resignation. A "no" recommendation would essentially force the respondent back into the disciplinary system to face whatever unpleasantness prosecutors have in store.
      But during the public comment period for the proposed rule, only the State Bar's chief trial counsel, Scott J. Drexel, submitted a statement. In February, Drexel wrote that resignations "can save significant State Bar resources that would otherwise be required in the investigation, prosecution, adjudication and/or appeal of the proceeding." He also noted that early resignations could benefit members, allowing them "to avoid the stigma or embarrassment of a public disbarment."
      Drexel's letter also raised concerns about late-stage resignations, or those made following litigation fully testing the prosecutor's case. He urged that bar members "should only be allowed to resign when there is a benefit to accepting the resignation that is equal to or greater than the public benefit derived from making the member's disbarment, and the reasons for it, public."
      But a funny thing happened in March when proposed rule 323 came before the board's Committee on Regulations, Admissions and Discipline (RAD): With little discussion, the panel voted 4?3 to reject the measure. "The proposed rule is not an appropriate delegation of the board's authority," says Bonnie M. Dumanis, district attorney of San Diego, who voted no. "We are empathetic to the concerns of the State Bar Court. But I want to be involved in those issues. Our rejection is procedural, not substantive."
      Some bar watchers interpreted the committee's action as a turf fight. Others read it as a warning to bar prosecutors that they had pushed hard enough. George Scott, chief court counsel and acting administrative officer of the State Bar Court, says he will work with State Bar staff to draft a new proposal, this time changing board procedures for reviewing resignations.
      Fellmeth at the Center for Public Interest Law wasn't pleased by the RAD committee's decision. "The Board of Governors should not be involved in adjudications," he says. "It's disappointing to have the board seek a role that is inappropriate. As Erich Fromm said back in the '60s, love means letting go."
      But the respondents bar was ecstatic. Karpman says, "Real management would be welcome, rather than the board delegating the final piece of its adjudication role."
      It's hard to know what really happened. Maybe the vote was just about defending territory. Maybe it was only a disagreement about procedures, not substance. But maybe even elected State Bar officials?and district attorneys?still believe in second chances, however difficult or remote.
     

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