The State Bar seeks public comment regarding a proposed Rule of Procedure of the State Bar regarding confidentiality of investigations in attorney discipline cases.
Deadline: 5 p.m. April 30, 2018
The rule pertaining to confidentiality of State Bar investigations states that the Chief Trial Counsel "may waive confidentiality" of the investigation. This phrase misrepresents the effect of disclosure of information pursuant to rule 2302(d)(1). For example, even after disclosure of information to another regulatory agency or to a law enforcement agency, OCTC would still consider the investigation confidential. Amendments to the rule clarifying that information can be provided without changing the confidential nature of the material are appropriate.
Additionally, OCTC is proposing general clean-up of the rule to reflect that OCTC has exclusive jurisdiction over State Bar disciplinary matters pursuant to rule 2101 and to explicitly allow the use of outside interpreters and translators without violating the confidentiality of the investigation.
On March 8, 2018, the Regulation and Discipline Committee of the Board of Trustees authorized a 45-day public comment period for a proposed amendment to Rules of Procedure of the State Bar.
OCTC proposes the following amendments to rule 2302.
1. Rule 2302(d)(1). Rule 2302(d)(1) currently provides, in part:
(d) (1) The Chief Trial Counsel or designee or the President of the State Bar, after private notice to the member, may waive confidentiality concerning a complaint(s) or investigation(s) for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality, including but not limited to the following circumstances: …
OCTC believes the phrase "may waive confidentiality" misrepresents the effect of disclosure of information pursuant to Rule 2302(d)(1). For example, even after disclosure of information to another regulatory agency or to a law enforcement agency, OCTC would not deem confidentiality to be waived for all purposes. Instead, the language was intended to mean that the information could be provided without otherwise changing the confidential nature of the material.
Further, OCTC also believes the "President of the State Bar" (now called the “Chair”) should not have authority over the disclosure of information concerning complaints or investigations because OCTC has exclusive jurisdiction over State Bar disciplinary matters pursuant to rule 2101 ("The Board of Trustees of the State Bar delegates to the Office of the Chief Trial Counsel exclusive jurisdiction to review inquiries and complaints, conduct investigations and determine whether to file notices of disciplinary charges in the State Bar Court, except as provided in Title III, rules 2201 and 2502, and Title II, rules 150-157.")
OCTC suggests the following clarification:
(d) (1) Notwithstanding paragraph (a) and without violating the duty of confidentiality or waiving confidentiality for other purposes, the Chief Trial Counsel or designee, after private notice to the member, may disclose documents and information concerning a complaint(s) or investigation(s) for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality, including but not limited to the following circumstances: …
2. Rule 2302(d)(3). Rule 2302(d)(3) currently provides, in part:
(3) After a waiver of confidentiality pursuant to paragraph (d)(1)(A) above, the Chief Trial Counsel or designee, may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities.
Again, OCTC believes the phrase “waiver of confidentiality” misrepresents the effect of disclosure of information pursuant to Rule 2302(d)(1)(A). OCTC proposes the following language:
(3) The Chief Trial Counsel or designee, may define the scope of information disclosed and may limit the dissemination of information pursuant to paragraph (d)(1)(A), above, to specified individuals or entities.
3. Rule 2302(d)(4). Rule 2302(d)(4) currently provides, in part:
(4) Except as otherwise provided by law or these rules, if the Chief Trial Counsel or designee or the President waives confidentiality pursuant to paragraph (d)(1) through (d)(3), the Chief Trial Counsel, the President or designee may issue …
OCTC believes the phrase "waives confidentiality" misrepresents the effect of disclosure of information. OCTC suggests changing the language of the rule as follows:
(4) Except as otherwise provided by law or these rules, if the Chief Trial Counsel or designee discloses documents or information pursuant to paragraph (d)(1) through (d)(3), the Chief Trial Counsel or designee may issue…
4. Rule 2302(e).Rule 2302(e) currently provides:
(e) Notwithstanding the provisions of paragraph (d), and without waiving confidentiality, the Chief Trial Counsel, in the exercise of discretion, may disclose documents and information concerning disciplinary inquiries, complaints and investigations to the following individuals or entities: …
OCTC believes the phrase “and without waiving confidentiality” is ambiguous and poorly drafted. The language was intended to mean that the information could be provided confidentially to the nine listed categories of persons or entities without otherwise changing the confidential nature of the material. OCTC suggests the following clarification:
(e) Notwithstanding paragraph (a), without violating the duty of confidentiality or waiving confidentiality for other purposes, the Chief Trial Counsel, in the exercise of discretion, may disclose documents and information concerning disciplinary inquiries, complaints and investigations to the following individuals or entities: …
5. Interpreters. OCTC investigates many cases in which the complainants or witnesses do not speak English, and/or documents are received in a foreign language. Therefore, OCTC frequently requires the services of language interpreters to translate interviews or documents. Some OCTC employees are qualified to do these translations in some languages, but we often need to employ outside interpretation services. While we believe that this practice does not violate the rule of confidentiality, OCTC requests that rule 2302 be amended to expressly authorize OCTC to use these outside services without violating confidentiality. Under our proposal, OCTC would contractually require the translation service provider to maintain confidentiality.
6. Any additional references to the State Bar President in rule 2302. As discussed above, the Chair of the Board of Trustees does not have jurisdiction over State Bar disciplinary matters, and therefore should not have authority to determine whether confidential materials are disclosed or whether confidentiality should otherwise be waived.
No negative fiscal or personnel impact is anticipated.
Regulation and Discipline Committee
5 p.m. April 30, 2018
Dag MacLeod The State Bar of California 180 Howard St. San Francisco, CA 94105 Phone: 415-538-2102 Email: Dag.MacLeod@calbar.ca.gov