The State Bar seeks public comment on a proposal to amend rule 5.21 of the State Bar Rules of Procedure which establishes the limitations period for disciplinary actions.
Deadline: March 11, 2022
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Rule 5.21 of the Rules of the Procedure of the State Bar imposes a general time limit of five years from the date of violation for initiating disciplinary proceedings based solely on a complainant’s allegations of a violation. The rule also sets out a variety of circumstances that will toll the five-year limitations period, provides a variation from the general rule if a prospective complainant dies before the time to begin a disciplinary proceeding begins and a surviving family member or the estate’s executor or administrator files a complaint, and exempts from the general time limit disciplinary proceedings investigations and initiated by the State Bar based on information received from an independent source other than a complainant.
Under the current rule, absent a tolling provision applying, the Office of Chief Trial Counsel (OCTC) must initiate disciplinary proceedings by filing the initial pleading—most often a Notice of Disciplinary Charges (NDC)—within five years of the occurrence of the violation, regardless of when the OCTC receives the complaint. As a result, whether a complaint is filed three years after a violation or four years and 360 days after a violation, the result is the same, the OCTC must file an NDC within five years from the date of the violation. This poses the risk that the OCTC may be unable to pursue a complaint alleging serious misconduct that would require substantial investigation (for example, a complicated misappropriation of substantial funds) simply because the complaint, though submitted within five years, was submitted by the complainant (most often not an attorney familiar with the rules) too close to the five-year cutoff to permit the necessary investigation. To address this, a proposed amendment would modify the general time limitation to provide that an NDC must be filed within the later of: (1) five years from the date of the violation; or (2) two years from the date the complaint is submitted (so long as that submission occurs within five years from the date of the violation).
Amendments to the current rule’s tolling provisions are proposed to: (1) consistent with the holding in Matter of Saxon, SBC 17-O-01259 (Review Department, June 26, 2020), make explicit that tolling applies while an attorney “represents or otherwise owes a fiduciary duty” to the complainant or specified individuals or entities related to the complainant; (2) provide examples of pending “civil, criminal, or administrative investigations or proceedings based on the same acts or circumstances as the violation” that will toll to specifically include “actions taken to remediate the violation, including efforts to collect funds owed as the result of the violation,” because such proceedings may involve determinations relevant to the scope and harm of a particular violation that may impact disciplinary decisions; and (3) include in the review proceedings after which the State Bar has two years to initiate a disciplinary proceeding review by the Supreme Court upon filing by the complainant of a Walker petition.
Amendments are proposed to two other provisions of the rule. First, the current rule provides that if a prospective complainant dies before the time to begin a disciplinary procedure expires, a surviving family member or the estate’s executor or administrator, may file a complaint with the State Bar within two years after the complainant’s death. The current rule does not specify any time following the filing of such a complaint within which the State Bar may initiate disciplinary proceedings. To address this, a proposed amendment would specify that a disciplinary proceeding must be initiated within two years after the filing of the complaint.
Second, the current rule does not define what constitutes an independent source and does not specify whether the independent source exception applies if a complaint is submitted based on an independent source. As an example, the OCTC has received complaints against prosecutors submitted by academic researchers premised on their review of public source materials including newspaper reports and judicial opinions. The OCTC believes that disciplinary proceedings arising from complaints of this type should be treated as independent source proceedings given that the complainant is simply a conduit for identifying independent source information, but the rule is unclear. Accordingly, proposed amendments: (1) provide examples of what constitutes independent source information, including court orders or opinions, a judge’s report, or a media report; and (2) make clear that the independent source exception applies regardless of how the State Bar learns of independent source information, even if the State Bar is notified of the information by a complainant.
Additional modifications to the rule are proposed for clarity and consistency with the modifications described above. And the amendments would specify that they apply retroactively to pleadings initiating disciplinary proceedings whose filing would have been timely as of the date of adoption of the amendments.
Not applicable.
Regulation and Discipline Committee