The State Bar seeks public comment on a proposal to amend rules 5.65, 5.337, and 5.345 of the State Bar Rules of Procedure, as they apply to define the scope of discovery.
Deadline: January 7, 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.
Financial Records. Effective January 1, 1993, Business and Professions Code section 6086.13 allows monetary sanctions to be ordered against attorney respondents in disciplinary proceedings. On March 23, 2020, the California Supreme Court approved rule 5.137, which sets forth guidelines for the imposition of monetary sanctions pursuant to Business and Professions Code section 6086.13(c), with an effective date of April 1, 2020. At its meeting on November 19, 2020, the Board of Trustees approved changes to rules 5.56, 5.57, 5.101, 5.137, 5.138, 5.139, 5.343, and 5.427 of the Rules of Procedure of the State Bar to provide a process for attorneys to seek reduction, waiver, or extension of time to pay imposed sanctions. Rule 5.65(C) governs discovery in proceedings relating to monetary sanctions.
Notice Provided Under Rule 9.20. Rule 9.20 of the California Rules of Court provides that the Supreme Court, in any order disbarring or suspending a licensee of the State Bar, or accepting their resignation, may direct the attorney to provide certain notices and make certain deliveries and refunds. The State Bar may order respondents to comply with rule 9.20 of the California Rules of Court, for example, when placing a respondent on interim suspension. Violations of rule 9.20 of the California Rules of Court when compliance with that rule was ordered by the State Bar Court are generally charged as violations of Business & Professions Code section 6103 [Failure to Obey a Court Order]. Rule 5.337 provides for discovery in matters involving a violation of rule 9.20 of the California Rules of Court as ordered by the Supreme Court. Rule 5.65(C) governs discovery when an alleged violation of Business and Professions Code section 6103 is premised on the respondent’s failure to comply with a State Bar Court’s order to comply with rule 9.20.
Deposition in Criminal Conviction Matters. Subdivision (c) of Business and Professions Code section 6101 states that within 30 days of receipt of the record of any conviction which involves or may involve moral turpitude the Office of Chief Trial Counsel (OCTC) shall transmit the record of conviction, which initiates disciplinary proceedings. In addition to crimes which involve moral turpitude as a matter of law (moral turpitude per se) and crimes that involve moral turpitude based on the facts and circumstances of the offense (may involve moral turpitude), an attorney can also be disciplined for the commission of crimes wherein their conduct amounts to “other conduct warranting discipline.” Rule 5.345 governs the Hearing Department proceedings in matters based on criminal convictions.
Financial Records. While the Rules of Procedure of the State Bar provide a process for attorneys to seek reduction, waiver, or extension of time to pay monetary sanctions, there is no rule that permits the OCTC to assess the financial condition of a respondent who intends to seek a reduction, waiver, or extension of time to pay monetary sanctions. The proposed amendment to add rule 5.65(C)(4) would permit the OCTC to request financial records and other proof of financial hardship, including a completed State Bar Court Financial Declaration, if the disclosing party intends to request that any monetary sanction be waived, in whole or in part, or be paid in installments, or the time to pay be extended. Such records would allow OCTC to evaluate the need for a reduction, waiver, or extension and make an informed decision as to whether to stipulate, submit, or oppose such a motion.
Notice Provided Under Rule 9.20. The proposed change to rule 5.337 permits discovery that more closely parallels the notice requirements of rule 9.20. The proposed addition of “co-counsel” to subparagraphs (B)(1)(c) and (B)(2) is consistent with the language of rule 9.20(a)(1). The proposed addition of “(or in the absence of counsel, the adverse party)” to subparagraphs (B)(1)(c) and (B)(2) permits discovery of the notice required in rule 9.20(a)(4). The proposed addition of subparagraph (B)(1)(d) permits discovery of information relevant to 9.20(a)(2) and (a)(3). When an allegation of a violation of Business and Professions Code section 6103 is based on the respondent’s failure to comply with the State Bar Court’s order to comply with rule 9.20 of the California Rules of Court, the OCTC is not entitled to the specific discovery listed in rule 5.337, because rule 5.330 provides that rule 5.337 only applies to 9.20 proceedings. The proposed amendment to rule 5.65(C)(5) would permit the same discovery in prosecutions of violations of rule 9.20 regardless of the court that ordered the respondent to comply with rule 9.20.
Deposition in Criminal Conviction Matters. A criminal conviction matter is initiated by the transmittal of a certified record of conviction. Where the conviction is not for a crime that is moral turpitude per se, it is necessary to demonstrate that the crime committed was moral turpitude based on the facts and circumstances of the offense or that the commission of the crime constituted other conduct warranting discipline. Because by statute, criminal conviction matters must be referred within 30 days of the receipt of a certified record of conviction, there is no investigation period. As a result, the OCTC generally does not have sufficient time to establish the facts and circumstances underlying the offense; even when the OCTC has time to request police reports and other court records, frequently, those records no longer exist or are not provided. The proposed amendment to rule 5.345 to add new subsection (D) would permit the OCTC to conduct one deposition of the respondent in criminal conviction matters as a means of establishing the facts and circumstances of the underlying offense.
Not Applicable
Regulation and Discipline Committee
January 7, 2022