PLEASE NOTE: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Governors of the materials published.

SUBJECT

Proposed Online Posting of Consumer Alert re Attorneys Charged with Major Misappropriation of Client Funds and Petitions filed under Business & Professions Code section 6007(c) involving Major Misappropriation

BACKGROUND

A particularly challenging aspect of prosecuting misappropriation of client funds cases is adequately ensuring the protection of unsuspecting current or prospective clients from the risk of continuing harm when a lawyer remains on active status after a major misappropriation charge is filed and pending in the State Bar Court. Currently, the State Bar posts on its website’s member profile page a filed Notice of Disciplinary Charges and any response to the notice, until such time as an order or decision is filed resolving the disciplinary matter. The website does not currently post a petition filed under Business & Professions Code section 6007(c) to enroll an attorney involuntarily on inactive status based on “threat of harm” to clients or the public.

DISCUSSION/PROPOSAL

To sufficiently warn and prevent future harm to clients and the public about lawyers charged with major misappropriation of client funds, the bar’s website policy should be extended to post a Consumer Alert displayed prominently on the member’s profile page. The Consumer Alert and informational text, coupled with a disclaimer, would be posted upon filing either a Notice of Disciplinary Charges or a petition under Business & Professions Code section 6007(c) in the State Bar Court, when either includes a charge of misappropriation of client funds in the amount of $25,000 or more, whether as a single charge or aggregate of charges.

The proposed Consumer Alert would contain the following message:

CONSUMER ALERT The State Bar of California has filed disciplinary charges against this attorney alleging that the attorney engaged in a major misappropriation of client funds. In order to read the Notice of Disciplinary Charges filed by the State Bar against this attorney, click here. To learn more about the general nature of the disciplinary offense of misappropriation of client funds by an attorney, click here.

The proposed disclaimer language would read as follows:

DISCLAIMER: Any Notice of Disciplinary Charges filed by the State Bar contains only allegations of professional misconduct. The attorney is presumed to be innocent of any misconduct warranting discipline until the charges have been proven.

The proposed policy also provides for posting online a filed petition under section 6007(c), which relies on a major misappropriation of client funds and any response, as set forth in Attachment A. To view a mock-up of the proposed Consumer Alert, informational text and disclaimer, see Attachment B.

ANY KNOWN FISCAL/PERSONNEL IMPACT

Some personnel impact is involved, to the extent that staff will be required to identify whether a Notice of Disciplinary Charges or a section 6007(c) petition involves a major misappropriation of client funds, post and eventually remove the consumer alert and disclaimer upon the filing of a decision or order resolving the proceedings. Where a filed section 6007(c) petition relies upon a charge of major misappropriation of client funds, staff would also be required to identify such petitions, post them and eventually remove the petition and any response upon the filing of a decision or order resolving the proceedings.

ATTACHMENTS
SOURCE

 Regulation, Admissions & Discipline Committee, March 4, 2011. Agenda Item, Action No. 111.B

COMMENT DEADLINE

April 21, 2011

DIRECT COMMENTS TO:

Jill Sperber
Office of Chief Trial Counsel
The State Bar of California
180 Howard Street, 7th Floor
San Francisco, CA 94105-1639
(415) 538-2023
(415) 538-1168 (Fax)
jill.sperber@calbar.ca.gov