The State Bar seeks public comment regarding a proposed amendment to the Rules of Procedure of the State Bar regarding Judicial Notice.
Deadline: 5 p.m., July 31, 2018
Under current law, it is unclear whether the State Bar Court must require certified court records in order to take judicial notice of the records of other courts. While parties generally stipulate to the authenticity of uncertified records, the uncertainty of whether a stipulation will be forthcoming, combined with the delay in securing certified records, requires parties to obtain certified court records for presentation to the State Bar Court. As a result, the Office of Chief Trial Counsel, and proffering respondents, expend significant time and resources.
Rule 5.104, Rules of Procedure of the State Bar, sets forth the evidentiary rules applicable in State Bar proceedings. Rule 5.104(C), quoted below, sets out the somewhat relaxed admissibility standard of California administrative and licensing proceedings:
(C) Relevant and Reliable Evidence. The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence must be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.
Nonetheless, it remains unclear whether the State Bar Court must require certified court records in order to take judicial notice of the court records. While parties generally stipulate to the authenticity of uncertified records, in some cases, no stipulation is reached even when there is no legitimate dispute concerning authenticity. For this reason, as part of the investigation process, the Office of Chief Trial Counsel (OCTC) customarily obtains certified court records for presentation to the State Bar Court. This is expensive because the court clerks charge for certification services and because the State Bar has to employ runners to obtain the documents. This process also delays OCTC’s completion of investigations (because court clerks are often backlogged with other tasks) and unnecessarily utilizes staff time.
Therefore, OCTC proposes that rule 5.104 be amended to expressly authorize the State Bar Court to take judicial notice of uncertified court records. In a State Bar Court proceeding, there should rarely if ever be a genuine dispute about the authenticity of a State Bar Court record or a California Supreme Court disciplinary order. Legitimate authenticity issues sometimes arise with respect to records from other courts. Therefore, the proposed rule would require the parties to provide advance notice to each other of their intention to use uncertified records from outside courts. This way, in the rare circumstance that there is bona fide dispute concerning the authenticity of such a record, the parties will have an opportunity to settle the matter among themselves or submit the issue for decision by the State Bar Court.
Any known fiscal/personnel impact
Financial and resource savings due to reduced time and cost of securing uncertified court records.
Regulation and Discipline Committee
5 p.m., July 31, 2018
Written comments may be sent to
OCTC Public Comment – Judicial NoticeThe State Bar of California180 Howard St.San Francisco, CA 94105 Email: OCTC_Rules@calbar.ca.gov(Subject Line: Public Comment – Judicial Notice)