CITATIONS FROM AUDITOR REPORT 2022-030

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"According to the assistant chief trial counsel who manages intake staff (intake manager), the State Bar initiates cases related to discipline in other jurisdictions in three instances: when attorneys self-report the discipline as required by state law; when the State Bar receives notifications from other jurisdictions; or when the State Bar becomes aware of the discipline through other means, such as media reports. However, as we discuss later, the State Bar’s processes do not proactively identify discipline imposed by  other jurisdictions.  

From 2010 through 2021, the State Bar closed more than 700 cases relating to attorney misconduct in other jurisdictions. We reviewed 32 of those cases and identified issues with nine of them, including four for which the State Bar failed to impose public discipline even though it was aware that another jurisdiction had done so, such as in Case Example 3. In that case, before the attorney’s resignation in California, the State Bar issued the attorney a warning letter instead of taking other disciplinary action on the basis that it deemed the attorney a minimal risk to the public due to their age and lack of ties with California. 

The State Bar’s intake manager did not provide any additional rationale for the State Bar’s decision to close the case. However, the attorney’s age does not seem relevant, as the other jurisdiction indicated that the alleged misconduct had recently occurred—less than five years before the State Bar’s decision to close the case with a warning letter. The State Bar does not consider a warning letter to be a disciplinary action, and thus its response was not reciprocal, given that the other jurisdiction ordered that the attorney be permanently prohibited from practicing law. Because the State Bar did not impose any public reciprocal discipline, the attorney has no public record of misconduct in California.  

Based on the attorney’s history of practicing law with a suspended license and failing to comply with the agreement with the other state to resign from practice in California, the lack of public discipline by the State Bar increases the risk that this attorney could engage in similar inappropriate behavior in the future.  In another of the cases we reviewed, the State Bar did not take proactive steps to inform the public that another jurisdiction had temporarily suspended the attorney to protect the public from further misconduct while the case was being decided. Case Example 4 describes this instance. State law considers a certified copy of a final order determining that an attorney committed professional misconduct by a court or body authorized to discipline attorneys in another jurisdiction as conclusive evidence that the attorney is culpable of professional misconduct in California. Because the case in the other jurisdiction was not final until January 2022, the State Bar could not have imposed discipline before then based solely on the actions of that other jurisdiction.  

To make this determination, the State Bar requires its employees to complete an annual questionnaire in which they disclose personal, financial, and professional relationships they have with licensed California attorneys. The State Bar then adds these attorneys to a list (conflicts list). Further, the State Bar can flag these attorneys in its case management system. When the State Bar identifies a conflict, the trial counsel’s office can assign the case to outside prosecutors, who are attorneys contracted by the State Bar or, in certain situations, recuse only those employees who have a connection to the case.  

The State Bar relies on its employees to identify potential conflicts of interest at both the intake and investigation stages. Its intake manual requires the employee processing a complaint to check whether the attorney identified in each complaint has a relationship with the State Bar that presents a potential conflict. If the employee then identifies such a potential conflict, a supervising attorney refers the case to an independent administrator contracted by the State Bar, who recommends whether the case should be processed by a State Bar employee with no declared relationship to the case or by an outside prosecutor. In addition, State Bar policy requires that employees notify their supervisors as soon as possible if a potential conflict arises or becomes known after a case has been opened. "

According to the Rules of Procedure of the State Bar, the chief trial counsel is required to recuse the trial counsel’s office from inquiries or complaints against attorneys if a conflict of interest or the appearance of a conflict of interest could raise doubts that the chief trial counsel would be impartial."