Solo and Small Firm
How to Choose a State Bar Defense Attorney
By Ashod Mooradian
I. HOW TO CHOOSE A STATE BAR DEFENSE ATTORNEY
Most California attorneys would agree that receiving a letter from the State Bar requesting a response to a client complaint would be very distressing, to say the least. In addition, if not handled properly, a State Bar disciplinary investigation can be catastrophic to any attorney’s professional reputation or worse result in actual suspension from the practice of law or even disbarment. As detailed below, the reality of the situation is complex and not all bad. Statistically speaking, most California attorneys will not receive a complaint or come under investigation for ethical misconduct by the State Bar in the first place. On the other hand, if the attorney cannot satisfactorily explain the alleged misconduct, the case will be escalated, and the attorney will suddenly find themselves exposed to a high statistical risk of having serious discipline imposed against them. In this article, I contend that the best way to ensure that a State Bar letter is properly handled is to seek out a qualified State Bar defense attorney. With the help of a qualified State Bar defense attorney, the targeted attorney (called “respondent”) can better navigate the disciplinary system and avoid costly mistakes along the way that can make a bad situation worse. The bottom line is this: if an attorney finds him or herself facing down a State Bar disciplinary investigation, the first and most consequential decision is retaining a qualified State Bar defense attorney. In California, the two most prominent bar associations for attorneys who practice State Bar defense are the Association of Discipline Defense Counsel (ADDC) and the Association of Professional Responsibility Attorneys (APRL.) Both ADDC and APRL maintain an online membership database that can be used to find a well-qualified State Bar defense attorney. ADDC: https://www.disciplinedefensecounsel.org/association-members/ and APRL: https://aprl.net/member-listings-state-country/.
II. UNDERSTANDING THE RISK OF DISCIPLINE
According to the State Bar’s 2020 Annual Discipline Report,1 the State Bar’s enforcement arm, the Office of Chief Trial Counsel (OCTC), received 12,197 complaints against respondents in 2020. Of those complaints, almost 99% (or 12,066 complaints) were closed by OCTC with no action. Also, in 2020, only 633 cases were filed by OCTC in State Bar Court.2 However, out of those 633 filed cases, 261 cases actually resulted in the State Bar Court imposing some level of discipline.3 In addition, from those 261 cases, the State Bar Court imposed disbarment in 97 cases and actual suspensions of the attorney’s right to practice law for a specified period of time (usually a minimum of thirty days and a maximum of two years) in 83 cases. Accordingly, once a respondent was in the system (i.e., a State Bar Court case was filed by OCTC), there was a 41% chance that some level of public discipline would be imposed and about a 69% chance that serious discipline4 would be imposed.
III. DECREASING THE RISK OF DISCIPLINE
It is very risky and sometimes foolish to engage in the discipline system without a guide, but it happens more often than one would expect. In fact, in my personal experience, many respondents choose to represent themselves in the disciplinary investigation of their alleged misconduct. Respondents, who may themselves be experienced and excellent attorneys in their own practice areas, naively believe that the skills that serve them well in Superior Court (or District Court) will serve them well in their encounter with OCTC or in State Bar Court. The unfortunate reality is that the State Bar disciplinary system is made up of a unique mix of criminal, civil, administrative rules and procedures that most lawyers are not aware of so much as being ready to contend with competently against OCTC’s diligent prosecutors. OCTC prosecutors are not unbeatable—far from it. Also, OCTC prosecutors must prove their charges by a “clear and convincing evidence” burden of proof.5 Nevertheless, they are highly trained, aggressive, have great staff support and know the State Bar Court inside-out. This is the reason why historically the rate at which discipline is imposed on respondents is high. Furthermore, what the discipline statistics won’t tell you — but what I will — is that in my almost ten years as a State Bar prosecutor, over 95% of the discipline cases I was assigned had a solo practitioner or small firm attorney as the respondent. One possible explanation for this observation is that, in general, most solos and small firm attorneys have no or limited staff support, which naturally makes a caseload more difficult to keep organized and on track. Consequently, solo attorneys and small firm attorneys must understand that the very nature of their day-to-day practice likely exposes them to a heightened risk of receiving a complaint and becoming the object of a State Bar disciplinary investigation.
IV. FIVE QUESTIONS TO ASK BEFORE RETAINING A STATE BAR DEFENSE ATTORNEY
a. What is the nature and extent of your knowledge and experience representing attorneys with issues pending before the State Bar?
In my opinion, the most heavily weighted factor in choosing a State Bar defense counsel is the amount of their experience. Representing respondents is a very specialized area of law. Due to the relatively small number of State Bar cases processed each year, the simple fact is that for a State Bar defense attorney to obtain a sufficient level of experience with the many types of State Bar cases takes a very long time, ideally 15-20 years. In addition to the sheer number of years, if a State Bar defense attorney has strong academic credentials, such as being an ethics professor at a law school or has a significant number of published articles or works, this certainly demonstrates a very deep and analytic understanding of the disciplinary case law used by prosecutors and judges in deciding whether or not ethical misconduct has occurred, which is, of course, a very important aspect of that defense attorney’s qualifications.
b. What is the nature and extent of your experience representing attorneys with the specific type of State Bar matter that is currently pending?
As noted above, there are dozens and dozens of matter types handled by OCTC. Further, each matter type has additional or unique requirements and procedures. Moreover, it is not only critically important to get a clear understanding of the State Bar defense attorney’s experience with the specific type of State Bar matter that is currently pending, but also the recency of that experience. The reason for this is another unique property of the State Bar discipline system — it is constantly changing. Consequently, a standard method of handling a specific type of State Bar case last year could be out-of-date this year.
c. What is your hourly rate and the up-front retainer amount?
Most State Bar defense attorneys charge an hourly rate and require a sizable up-front retainer. Thus, it is important to request that the State Bar defense attorney provide an estimated total budget for the contemplated representation. This will not only give you an idea of the total cost of the proposed representation but also provide a clear and pragmatic look at what the State Bar defense attorney intends to actually do on your behalf. Another consideration that affects the estimated cost for a State Bar defense is the addition of new cases after the initial retainer agreement is signed. Unfortunately, it is not uncommon for one attorney to have several cases pending against them at the same time. Consequently, it is important to understand how the addition of new cases after the commencement of the State Bar case representation will affect the billing and cost structure of the initial retainer agreement.
d. What is your client communication policy and procedures?
Like any area of law, many important events in the life cycle of a State Bar matter are time-sensitive. Therefore, State Bar defense attorneys should have a very robust client communication policy, regularly providing timely communication about the progress of the case and answering questions about the unique law, rules or procedures that can have a dramatic effect on the outcome of the case.
e. Do you have previous experience with the OCTC prosecutor or State Bar Court Judge involved in the State Bar matter that is currently pending?
Although there is a certain level of attrition at OCTC, generally speaking, the reality is that the typical State Bar defense attorney deals with the same OCTC prosecutors year after year and through this consistent contact comes to understand each prosecutor’s strengths and weaknesses. Similarly, as State Bar defense attorneys appear again and again before the State Bar Court judges, they come to understand their judicial temperament and style. This understanding of OCTC prosecutors and State Bar Court judges can be very valuable information for a respondent facing a State Bar disciplinary investigation or State Bar Court matter.
As most attorneys know, the unfortunate reality is that the professional consequences of a bad disciplinary outcome will extend far beyond the end of the term of the imposed discipline. Even when the lowest level of public discipline is imposed, the disciplined attorney will face questions from prospective clients and opposing counsel about “what happened” for many years if not their entire career! After all, as between two equally qualified attorneys, one with public discipline and one without, is it really a mystery who most clients will select? Thus, the selection of a State Bar Defense counsel could be the most consequential decision of your professional career. Don’t roll the dice on your career unless you have diligently explored the qualifications of the State Bar defense attorney you are considering retaining. Asking the five questions listed above and carefully considering the responses before proceeding with any retainer agreement is a good start.
After nearly a decade as a senior prosecutor with the State Bar of California, Ashod Mooradian founded a boutique practice exclusively focused on legal ethics, professional responsibility compliance, and State Bar matter representation in disciplinary, regulatory or admission-related cases. Currently, Ashod is a member of the standing ethics committees for CLA and the Los Angeles County Bar Association. Also, he is an active member of the Association of Disciplinary Defense Counsel, the Association of Professional Responsibility Lawyers and the American Bar Association’s Center for Professional Responsibility (CPR). In 2019, Ashod was awarded CPR’s Jeanne P. Gray Diversity Scholarship.
1 Released on April 27, 2021, the 2020 Annual Discipline Report (ADR) provides a statutorily mandated performance overview of the attorney discipline system and information on State Bar operations, initiatives, and accomplishments that promote the State Bar’s public protection mission. It also is the most up-to-date repository of data about the State Bar’s discipline system.
2 California is the only state with an independent professional Court dedicated to ruling on attorney discipline cases. Since 1989, the court has used full-time judges appointed by the California Supreme Court, Legislature, and Governor. The State Bar Court hears charges filed by OCTC against attorneys who have allegedly violated the State Bar Act, the Rules of Professional Conduct or other professional misconduct which directly reflects on an attorney’s fitness to practice law, among other things. The State Bar Court has the authority to recommend that the California Supreme Court suspend or disbar attorneys found to have committed acts of professional misconduct or to have been convicted of serious crimes. For lesser offenses, the State Bar Court can issue public or private reprovals. The State Bar Court also can temporarily remove lawyers from practice when they are deemed to pose a substantial threat of harm to clients or the public. Lawyers may seek review of State Bar Court decisions in the California Supreme Court.
3 In the California disciplinary system, public discipline includes (from lowest to highest level) reprovals, stayed suspensions, actual suspension and disbarment. See also, Standards for Attorney Sanctions for Professional Misconduct, standard 1.3.
4 For purposes of this article, I have defined “serious discipline” as when disbarment or actual suspension is imposed against the attorney.
5 See e.g., Rules of Procedure of the State Bar of California, rule 5.103.