Attorney Discipline & State Bar Court of California, with Tom D'Amato
How many of us lawyers really understand that California has an entire state bar court just for attorney discipline? Or how the disciplinary process really works? Lucky for us, Tom D'Amato of D'Amato Law is here to educate us. In this episode of I Know a Lawyer, I speak with Tom about the attorney discipline process as well as how the State Bar Court of California operates and its unique position in the country. We discuss:
How the state bar works and its purpose (02:42).
Attorney discipline process (03:46).
How complaints against lawyers are processed and mostly dismissed (05:44).
Investigation phase by by the Office of the Chief Trial Counsel (09:40).
Attorney's opportunities to respond (15:04).
Settlement options that may remain private (17:06).
State Bar Court hearing and review (22:31).
Thank you to Tom D'Amato for joining the show. I think all attorneys could learn a thing or two from listening to Tom's presentation. Contact Tom at damatolawcorp.com. Check out Tom's presentation on this topic here. Thank you for listening and if you enjoy the show, hit subscribe so you don't miss out on any future episodes.
This podcast is brought to you by McKenna Brink Signorotti LLP, located in Walnut Creek, California. As usual, this podcast is not intended to provide legal advice. If you need legal advice, contact an attorney, don't rely on podcasts.
Transcript
Ryan Lockhart (00:01):
Well, everybody welcome to, I know a lawyer. My name is Ryan Lockhart. Your host, thank you for joining us today. As you know, I know a lawyer is brought to you by McKenna Brink Signorotti, LLP. We are a boutique law firm in Walnut Creek, California. Check us out at mckennabrink.com to see all our legal services and what kind of value and solutions that we can provide for you today. I have a very special guest and I'm really excited about this episode because we're going to talk about a topic that applies really to all lawyers. And it's quite frankly a topic that I don't know that much about. So I'm joined today by Tom D'Amato. He's a certified legal specialists in legal malpractice law. And we're gonna talk about attorney discipline in the state bar court of California. I I'll just tell you, right, frankly, that I didn't even know. We really had a state bar court of California. So I'm kind of interested to hear what he's going to talk about today. Thanks for joining me today, Tom, how are you doing?
Tom D'Amato (00:55):
I'm doing very well. Thank you for having me, Ryan. You know, your comment that you just make made is an interesting one. And what I mean by that is not really knowing that we had a state bar court. California is very unique in that, and we are the only state in the union that has a separate state bar court.
Ryan Lockhart (01:15):
Shouldn't be surprised, you know, California likes to form their own, their own path, so to speak in various areas. And this is just another one of them. So why don't you tell you a little bit about yourself, Tom?
Tom D'Amato (01:25):
As you said my name's Tom D'Amato and I'm the owner of D’Amato Law in Orinda, California. I'm a certified specialist in legal malpractice law. I've represented lawyers and law firms my entire career. And that includes the defense of malpractice cases. Your Eno claims that come from clients for alleged negligence or breach of fiduciary duty. We help lawyers and law firms with the law of lawyering that the law around running a law practice and ethical issues. We also help with fee disputes that can arise with conflicts and close to the subject that we're going to talk about today. I defend lawyers before the state bar, when they're investigated or being prosecuted by the state bar. I say lawyers cause it's most often almost always the law, the lawyer individually that is being investigated and accused of unethical conduct, but an entity itself like a law firm can also be charged with discipline as well.
Ryan Lockhart (02:33):
Great. So before we jumped to the state bar court, let's just back up a little bit. And why don't you just give us a little bit more information on just how the state bar itself works?
Tom D'Amato (02:42):
Sure. you know, anyone who is a lawyer in the state of California is a member of the state bar. And for most folks who don't work in this area or have been fortunate enough to have a successful career where you have not been brought into this area by an ethics that's really what, you know, I'm a member of the state bar. It's where I applied. I did my moral character application. I submit my CLE every three years to maintain an active membership, but the state bar is much broader than that. The state bar's mission is really to protect the public and has a few primary functions, licensing and regulation, which we just talked about and then discipline and the advancement of ethical and competent practice of law. So that's the state bar overall the state bar then as you probably know, I'm sure you do know makes rules that are promulgated, promulgated by the state bar and improved by the state under the rules of professional conduct.
Tom D'Amato (03:46):
And then they are also charged with enforcing those and their enforcement mechanism is what we're going to talk about here. So we're going to talk about attorney discipline. So the state bar investigates complaints of attorney misconduct, and if there's a basis for prosecution, the complaint is then filed in the state bar court. So typically what will happen? Most people think it's more likely you're going to get complained. If there's going to be a complaint it's going to come from a client. That's mostly where the complaints come from, but anybody can submit a complaint about a lawyer, or I should say a non lawyer, for example, for like the unauthorized practice of law or misrepresentation of legal services. But it's majority is against lawyers and those complaints come from opposing counsel. They come from judges, they can come from insurers and insurance carriers really anywhere and they can come anonymously.
Tom D'Amato (04:50):
So the state bar makes it extremely easy to file a complaint against a lawyer possibly to the chagrin of many lawyers out there. But that again is part and parcel of their function is to protect the public. And we want to minimize the barriers for folks to make legitimate complaints to the state bar. So, you know, if you go onto the state bar website, Ryan on the landing page, almost any page that you hit at the state bar you can find the file complaint button, and it truly is that within a few clicks of the mouse and in a basic description, you can report somebody to the state bar.
Ryan Lockhart (05:36):
I think w when we talked earlier, you mentioned that majority of the complaints really don't go anywhere. Is that correct?
Tom D'Amato (05:44):
Yeah, that's right. So you know, something on the order of about 13, 14,000 complaints are lodged each year with the state bar the complaints are on a steady rise in the last five years from about 12,020 to about 13,500 for 2019, we haven't seen the stats yet for this year. I should make a comment that the state bar is required by statute to issue an annual report. Folks like me dig into them. There they're a wealth of knowledge on exactly these types of issues. How many complaints have been made, how many have been reviewed or investigated and then progress through the process that we're going to talk about, but something on the order of what's called 13, 14,000 complaints are made each year against lawyers. I often say, when I'm talking about these issues, it's probable, if not highly probable, if you practice in certain areas for any length of time, you've probably been reported to the state bar.
Tom D'Amato (07:00):
You just don't know about it. Again, you know, those numbers are pretty high up there. So if you figure 13, 14,000 reports a year, you've practiced for 20 years, the chances of getting reported to the state bar fairly high. But of the complaints that are received like for example, last year in 2019 13,500 complaints received almost 12,000 were closed by the office of chief trial counsel, which we got to talk about a little bit as well. We're closed with no action. And so, you know, 1500 of them give or take of the 14,000 progressed to something other than they were received by the state bar. They were looked at and closed oftentimes, you know, bad bedside manner complaining about an adverse result that really didn't have anything to do with ethics ex and the, like, those are the ones that are closed fairly promptly. And then, you know, the ones where there is a likelihood of an ethical violation, or even as you get into serious ethical violations progress through the process.
Ryan Lockhart (08:21):
So I think you just mentioned, you've talked about that. Let's get to that because once the complaints received and they review it and it's going to be not dismissed right, then what's the process look like after that?
Tom D'Amato (08:34):
Yeah. Great question, Ryan. And, you know, while we're in a political season here, you've often seen sort of how a bill becomes a law and it progresses through, well, the state bar has a very similar process and you can go onto the state bar's website and they have a flow chart that, that will lay out what once the complaint is lodged and how it progresses through the, through the system. So, you know, regardless of where that complaint comes from, it's received by the state bar if it was from a complaining witness, basically that's the PR the complainant, they call it a complaining witness that person will get noticed that it's received and that it's, and it's handled. And you know, we've already seen that the overwhelming majority of complaints, and at that stage basically does the complaint describe a possible ethical violation if the answer is no, the case is closed and the state bar moves on to the next one.
Tom D'Amato (09:40):
If the complaint demonstrates a possible ethical violation, the state bar will then involve assign an investigator. That's when you're now getting into what's called the office of the chief trial council. The office of chief trial counsel is the body in the state bar that does the investigation. If the investigation progresses to a charge, which is like the complaint they have the prosecutorial responsibility to then put on the evidence in the case to prove discipline in the state bar court. So the investigator gets it, the investigator looks at it, the investigator can conclude that there's not evidence of an unethical violation, can close it at that stage and, and end it. And I should note that these state bar investigators, their lawyers like you and I, Ryan. So these are lawyers who were specially trained in the rules of professional conduct and ethics.
Tom D'Amato (10:44):
I should also know you know, the law of lawyering and, and the rules and duties around how we practice law are also governed by a statute and the business and profession codes too. So, and that's where the statutory authority comes for all of this that we're talking about with the state bar court, the rules promulgation and the like, but if the investigator finds that there's evidence in an ethical violation, that's when the attorney gets notified and the attorney is going to get notified by whatever your, your contact information is at the state bar. So when you go onto your profile, if you haven't lately, I would encourage you to go do so. It's, it is your obligation, Ryan and mine, to make sure that we keep our state bar profile up to date with our current address and contact information. So that's where you're going to get this.
Tom D'Amato (11:38):
It comes in an email it, and it pops up in your inbox. And it's a little letter from the investigator from the office of chief trial counsel, and it lays out the allegations usually a very good day for the lawyer. And you can imagine the, the emotions around that. Okay. yeah, I mean, we could say, be sitting here doing this podcast, Ryan, the thing pops up, you know, lawyers get angry, they get upset, they get embarrassed you know, the, the gamut of emotions that run when that, when that letter hits. We'll talk about that more in a second, but we're, as we're talking about flow that's when the lawyer gets notified in the lawyer has an obligation to cooperate and the opportunity to respond. And this is most often where my office gets involved, a lawyers who get those letters.
Tom D'Amato (12:44):
I would encourage you to contact a lawyer like myself or someone else to help you navigate that process and to provide some objectivity, right? This is, this is, it's a highly emotional situation while we are lawyers and are trained in being objective and evaluating, it can be hard when it's you and your conduct. So I encourage people to get a lawyer. You may have insurance for it. Not all insurance policies have coverage for disciplinary and investigation and complaints. And if you do, it may differ. And so we can get into that a little bit but I would encourage lawyers to get, get a lawyer themselves and then they can respond. It often should be done in writing. The, sometimes you'll see that these letters have very pointed questions, like, like an interrogatory. They want to see a response to some particular question or allegation they have.
Tom D'Amato (13:46):
Sometimes it's pretty vague, honestly, of here's kind of the description of what's happening and tell us your response. Oftentimes there's a request for documentation, and again, this can be like a request for production of documents, you know, give us all documents in support of X, or it can say, you know, you determine what you think is material to your response. And send that to us once you're there, that's again, another opportunity for the state bar to close these things. And most often where they do get closed. And so if we got back to our statistics it is, you know, you're now dealing with a smaller number of complaints. So the likelihood of it progressing further is higher, but you still see quite a number of complaints that are closed in this investigation space, if you're lucky or I should say, not lucky if, if you've done a good job, you have not committed an ethical violation or a serious one that, that the state bar wants to pursue.
Tom D'Amato (15:04):
And you've demonstrated an appropriate response. You're going to get a letter that says, they're closing the file without further action. And that'll be it. If there is an ethical violation and the state bar wants to pursue it further, then you're going to get to the complaint stage. The complaint is like any other complaint. And this is where the state bar court starts to look like the superior court, that many of your listeners, and that you may be familiar with yourself. If you logged on to San Francisco superior court or logged onto the state bar court website, it looks just like that. It looks like a docket. It's got a complaint. It has the register of actions. It has future hearings and progresses through just like any other court. The unique thing here is now you gotta get notice of your violations that the state bar is going to try to hold you accountable for, and you get an opportunity to try to settle.
Tom D'Amato (16:07):
So at that stage, Ryan, if, if you're working with me all throughout this, I should say we are extremely cooperative. And we, we find that it is to the lawyer's benefit to be cooperative, if not overly cooperative, and if, if needed or appropriate conciliatory remorseful in the conduct, that's been alleged because that's what the state bar wants to see most of the time, if you're in my office, you've had an otherwise unblemished career. This is hopefully a once in a career type of an event. And we're conveying that to the state bar. We're conveying the seriousness of what you're taking this this investigation and trying to help them to reach the conclusion that it should be closed. But if they're ready to file a complaint, now we're talking settlement, you can go to a settlement conference just like you could in any other court.
Tom D'Amato (17:06):
And if the case resolves at that point you can resolve it with basically an alternative to discipline that isn't discipline. So maybe you're going to go take some extra CLE, maybe whatever it's going to do B, but it's not going to be quote unquote discipline. That's usually a good thing for the lawyer, because that's what we're trying to avoid. We're trying to avoid the public nature of this process. And you know, so far everything I'm talking to you about is confidential. The complaint, the investigation, the response the lead up to the filing of a charge, the settlement communications is all confidential. And so even if there is potential for an ethical violation or an actual ethical violation, oftentimes we're trying to negotiate something that's a private reproval or something other than actual discipline. Okay. If
Ryan Lockhart (18:08):
I have a quick question, when does the, so the lawyer who got the complaint against them, or cause you said people can make these anonymously, when does a lawyer find out who made the complaint, the actual allegation?
Tom D'Amato (18:22):
So in the, so in the letter that you get, that's the investigatory letter. If there is an, a complaining witness, that'll be identified in there. Okay. Now, most of the time, even if it's not stated, you know, what it's about by the given the nature of the allegations and the issue. So, you know, in your line of work, you know, you were doing X, a state plan, and you know, somebody was not pleased about how you handled the tr you know, putting some, some assets in trust and you didn't get back to them. And there was a dispute about fees. My suspicion Ryan, is that doesn't happen to you all that often quality of your work and your firm. So you would probably say, Oh gosh, you know, that's probably Bob or Jane. And, and most of the time, you know who it is, who's complaining. But if, if a complaint or charge is going to be filed, that that becomes the public record. And so that's when it goes onto your state bar profile, there's a link to the state bar court case that has a case number. Anybody on the planet can go to your profile. Now, click on the button, get to the state bar, state bar record. And then it progresses like any other trial with the calling of witnesses, the marshaling of evidence motion practice with, you know, with the office of the chief trial counsel and its senior attorneys or counsel, then prosecuting the case through the state bar the state bar court, then the state bar judge.
Tom D'Amato (20:19):
This is all, you know, in one system. So the state bar judge then is the person who rules upon this and decides whether or not the state bar has carried its burden to prove an ethical violation and one that warrants discipline. Now, as you can probably imagine, given the statistics that we've already talked about, if you're this far along in the process, the likelihood of you being found guilty of an ethical violation and being disciplined now skyrockets. Okay. So if a, if a charge is there yeah. The chart, I mean, people win, don't get me wrong. You know, it's, it is innocent until proven guilty. But again, we've weeded out 85% of the complaints just, you know, before it even got to the investigator's office we've weeded out more complaints in the investigation. We've weeded out more complaints in a pre-charge settlement or other dissolution.
Tom D'Amato (21:29):
And so now, you know, we've got what's left. The state bar thinks is pretty serious and you know, it is serious. And so the lawyers in that system have a pretty uphill battle before the state bar court once you've been found guilty or that that they've proven their case, and discipline's going to be imposed the state bar has guidelines not dissimilar to like the penal system. I don't do criminal law. So I'm not gonna make too much of an analogy to sentencing guidelines, but it's, it's not too dissimilar. There are guidelines. And they, and they look at what you've been charged of and how it relates to other cases of similar conduct. And in a sentence is imposed. You have a right of review as does the complaining witness as does the state bar. And so you know, you can bring it to the review department.
Tom D'Amato (22:31):
So there are, there's the hearing department, which is basically your trial court level. And then there is the review department, which is basically your appellate department. All of this I should say is also within the state bar, right? So we're not outside the state bar system. These are all employees or if there's a conflict or other reason why they have some outside lawyer helping and appointed as a, as a designee of the state bar. But these are basically, you know, this is everybody inside the state bar. If you're in the review court, you have almost no shot of overturning it. Basically 1% of cases get either a new hearing because of new evidence or some error. You know, you got a 90, it's a 99% chance that the result's gonna stick. Once that happens, the state bar court basically issues a recommendation of the discipline to be imposed, but the state bar court does not actually impose the discipline.
Tom D'Amato (23:39):
All state bars discipline is reviewed by the Supreme court of California. So the, the recommendation of discipline then gets sent to the Supreme court. How often do you think the Supreme court differs with the state bar court or less than that 1% you mentioned earlier? Exactly. I would, I would never say that the Supreme court is rubber stamping anything, but they've got the record you've progressed through the system and it's virtually certain that it's going to be, it's going to be upheld at that seat. So that's the process. That's taken you through all throughout you have an opportunity to settle and you know, settlements when there's going to be disciplined. So if you're that far in the process the state bar is, is not likely to settle without some actual discipline imposed, all discipline has to be approved by the court.
Tom D'Amato (24:41):
The office of the chief trial counsel, who, who is, who is who you would negotiate the settlement with. They're, they're not entitled to approve it unless there's no discipline and impose, but if there's discipline and pro imposed, it has to be approved by the state bar court and then ultimately approved by the state bar of California. Once you've been disciplined then there are, there are various different levels, right? It could be a public, you know, reprimand, which is a very public slap on the wrist. It is discipline as defined. So you have been disciplined, you'd have to report that you know, to your carrier and to other folks you can be suspended. You can be suspended for 30 days. You can be suspended for multiple years. The suspension can be stayed at pending probation. And so how that may look, they say, you know, we're going to suspend you for 30 days but we're going to stay the suspension and put you on probation for a year.
Tom D'Amato (25:53):
And during that year, we're going to want you to report back and fill out these various different reports on intervals that they set basically to show that you're, you know, you've learned your lesson, you're of good character. You've done the things that you want to do. Oftentimes like we've already talked about, you know, maybe they're going to say, you need to go 25 hours of additional CLE. You need to do this, you need to do that. You need to make restitution. And but, but that is a suspension. And if you are suspended, actually suspended from the practice of law, you have to notify all your clients that can be, that can be particularly harsh. And so you know, you got to tell everybody ineligible to practice law please contact Ryan. If you have any questions if you are solo practitioner, you could see how detrimental this could be.
Tom D'Amato (26:54):
And you certainly wouldn't want to engage in the practice of law while on suspension. Okay. or you could just be suspended right away. Or if the conduct is egregious enough you can be disbarred. And that certainly happens. If you follow the state bar on LinkedIn and I would encourage you and all of your listeners, I encourage all lawyers to follow the state bar on LinkedIn. They put out notices of rule changes coming upcoming deadlines. For example, if you remember a year or two ago, we all had to get fingerprinted. The state bar was pretty good about sending out notices about that. Sending out reminders about that saying, we really mean it. We really mean at this time, please go and get fingerprinted. But they also publish on their discipline. And so, you know, lawyers like me, we follow those pretty closely. We open an op, we look at, you know, what did lawyer X do to warrant why it helps us guide our practice moving forward. And so that's where we'd sort of gleaned. I mean, you can imagine what the disbarment stuff is. Okay. misappropriation of client funds.
Ryan Lockhart (28:10):
That's, that's the main one, right, right there. That's pretty much what I hear about
Tom D'Amato (28:15):
You know, money issues are big, you know, at client harm is big, obviously. So but it can be for other things, multiple infractions you know, if you were one of those persons who persuaded the state bar on an investigation to close and, you know, a year or two later, there's another case that's open you know, these things can be gradual and they can look back. And just because the state bar decided not to discipline you in case one, they can consider it in case two. Well, so, you know, yeah. I mean, and it doesn't become like a three strikes rule type of deal, but it's a factor and patterns, right. They look at patterns, right. That's, you're 100% right. Ryan, it's R you know, they're looking for you know, I hate to say it this way. It's really a little hokey, but they're, they're looking at your mind and character in your heart, right.
Tom D'Amato (29:16):
Are you, are you a good person and of ethical conduct? And, you know, you, you did a one-off issue because life moves pretty fast to borrow a line from Ferris Bueller, you know and, you know, we all make mistakes, you send out an email, you shouldn't have sent out. Yeah. you know, you, weren't thinking, and, and those happen over course of career of a career. And I've, you know, I've seen that and I've seen the state bar recognize that, you know, Tom, you've got 20 years of unblemished practice, you've, you're showing remorse and you know, an understanding of the severity of this situation here. And you know, we're gonna, you know, we're going to close it without imposing discipline. One, two, three of those start to pop up. Now, it's, you know, now there's something going on. You, you know, speaking of something going on Ryan, one thing that we haven't touched on, and I'm certainly no expert in this, but you, you can probably imagine, you know, complaints arise out of mental health and substance abuse issues too.
Tom D'Amato (30:28):
Right? So you and I are in a stressful business. It's not easy being a lawyer. We are tough on ourselves. Our clients are tough on us. Courts are tough on us, opposing counsel's tough on us. And in, in another presentation that I give is about competence and you know, some of these other issues around mental health and substance abuse. So that's a part of the disciplinary system. It, you know, I missed a deadline or I didn't get back to my client for a year, or I took money. And it was a result of, or arising out of, you know, some health issue or some substance abuse issue. The state bar recognizes that, and there's an alternative track for substance abuse and mental health issues. It's called the alternative discipline program. And so if that happens to you or, or a lawyer and you are honest and candid about that and willing to talk about that with the state bar, they'll divert you into such a program. I'm not saying they're not going to discipline you. They may, but there there's an alternative process for that. And my understanding of the lawyers who have been through that program, it's, it's a good one. And there are resources available to try to help lawyers both to deal with the disciplinary complaint and issue and to, you know, whatever the root of the mental health or substance abuse issue that may be underlying that.
Ryan Lockhart (32:13):
Well, thank you very much, Tom. That was a tremendous, walk-through really at the attorney discipline system and really about the state bar court that I just quite frankly didn't know that much about. So I appreciate all the comments you made today. And Tom has also graciously agreed to allow me to host his presentation on this topic. And it, so it's going to be in the show notes. I'm also gonna have Tom's contact information in the show notes, because quite if you are an attorney out there and you do get that letter from the investigator, give Tom a call because if it ever happens to me anytime, I know I'm giving you a call right away. Cause that would be an emotional situation for sure.
Tom D'Amato (32:47):
Thanks so much, Ryan. I really appreciate it. And I thank you to your listeners and your firm for having me happy to help anybody who needs a little assistance with this. And I really appreciate the opportunity.
Ryan Lockhart (33:02):
My pleasure. Thank you very much for joining me. So that was Tom. D'Amato, give him a call off if you have any legal malpractice questions. My name is Ryan Lockhart. This is, I know a lawyer. Thank you, everybody. Take care and enjoy Halloween. Bye.