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 Further Amendments to Rule 5.30, subdivisions (A) and (C), Rules of Procedure of the State Bar-Release for Additional Public Comment

BACKGROUND

The Office of the Chief Trial Counsel (OCTC) has identified several areas where amendments to the Rules of Procedure of the State Bar would help OCTC process its disciplinary cases more expeditiously before disciplinary charges are filed.

DISCUSSION/PROPOSAL

Amendment to Rule 5.30(A), Rules of Procedure: Current rule 5.30(A), Rules of Procedure, provides that prior to the filing of disciplinary charges, a party may request an early neutral evaluation conference (ENEC) with a settlement judge of the State Bar Court. Proposed amendments to rule 5.30(A) would: 1) require OCTC to notify the member in writing of the right to an ENEC; 2) establish a 10-day time frame within which a party must request the ENEC after service of notice; 3) provide that failure to timely request an ENEC is deemed to waive the right to an ENEC; and 4) provide that failure to hold an ENEC if notice was properly given will not be the basis for dismissal of the proceeding.

On Sept. 17, 2011, OCTC’s proposed amendments (set forth in Attachment A) were released for public comment by the Board Committee on Operations. Following a 30-day public comment period ending Oct. 20, 2011, the proposed amendments returned to the Committee on Regulations, Admission and Discipline Oversight (RAD) for its Nov. 3, 2011 meeting. The sole public comment received is set forth as Attachment B. OCTC’s response to the public comment is set forth as Attachment D.

At the RAD meeting, OCTC proposed including a new sentence to rule 5.30 (A). The purpose of this addition is to remove potential ambiguity by use of the phrase “service of notice” by expressly stating that the 10-day time period to request an ENEC is not extended by the method of computing time set forth in Rule 5.28(A). Rule 5.28(A) addresses pleadings filed in State Bar Court. It provides for the same extension of time for service afforded by Code of Civil Procedure section 1013a. The proposed additional sentence for rule 5.30(A) is set forth in Attachment C for additional public comment.

Amendments to Rule 5.30(C), Rules of Procedure: Current rule 5.30(C) requires OCTC to submit a copy of a draft notice of disciplinary charges to the ENEC settlement judge. Proposed amendments to rule 5.30(C) would afford greater flexibility of documentary evidence required for submission to the settlement judge and require a statement of OCTC’s settlement position. On Sept. 17, 2011, OCTC’s proposed amendments (set forth in Attachment A) were released for public comment by the Board Committee on Operations.

Following a 30-day public comment period ending Oct. 20, 2011, the proposed amendments returned to the RAD Committee for its Nov. 3, 2011 meeting. At the RAD meeting, OCTC proposed several further revisions to rule 5.30(C) to: 1) eliminate a redundancy in language (i.e., delete “statement of the case” and retain “other written summary”) and 2) make a stylistic improvement by substitution of “documentation” for “document.” These proposed further modifications are set forth in Attachment C.


ANY KNOWN FISCAL/PERSONNEL IMPACT

None

ATTACHMENTS
SOURCE

Board Committee on Regulations, Admission and Discipline Oversight
November 3, 2011
Agenda Item, Action no. II.A

DEADLINE

December 6, 2011

DIRECT COMMENTS TO

Jill Sperber
The State Bar of California
Office of the Chief Trial Counsel
180 Howard Street, 7th floor
San Francisco, CA 94105
Phone: 415-538-2023
FAX: 415-538-2214
jill.sperber@calbar.ca.gov