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The state Supreme Court seemed to use a recalcitrant lawyer’s case on Wednesday to suggest that the State Bar adhere more strictly to its own disciplinary standards. Some of the justices appeared concerned during oral arguments in San Francisco that the State Bar admittedly often doesn’t follow a standard that requires harsher punishment in most instances for lawyers who are repeat offenders. Both State Bar Deputy Trial Counsel Jay Goldman and his opponent, David Clare, told the court that the Bar’s sanctioning standards for professional misconduct are regarded as guidelines, not requirements. “Is that proper — to disregard [them] as a matter of course?” Chief Justice Ronald George asked. “Is it still a standard if it’s honored in the breach and not in the observance?” Last year, the State Bar Court’s review department ordered a 60-day suspension for Pacific Palisades lawyer Ronald Silverton, who has twice lost races for the State Bar Board of Governors on a platform of abolishing the discipline system. The three-judge panel found that Silverton had charged unconscionable fees and hadn’t acted in his clients’ interests by entering into agreements that compromised their medical bills. State Bar prosecutors had sought disbarment, noting that Silverton, who originally got his Bar license in 1958, had been disbarred in 1975 after being convicted of filing a fraudulent insurance claim and soliciting someone else to commit grand theft. He was reinstated in 1992, but ran afoul of the State Bar again only 22 months later. In rejecting a second disbarment, the State Bar Court decided not to apply Standard 1.7(a), which says there should be greater punishment for repeat offenders unless the prior discipline was so remote in time and the original offense so minimal that a harsher penalty would be manifestly unjust. The State Bar Court judges felt that Silverton’s 1975 disbarment was remote — and that Silverton had a good faith belief he had done nothing wrong. The Supreme Court’s concern with that decision was apparent last summer when the justices denied Silverton’s appeal, but took the unusual step of granting review on their own motion. On Wednesday, Justice Marvin Baxter told Clare, a Newport Beach solo practitioner who has represented Silverton throughout the proceedings, that the court took the case to decide if the State Bar Court “misapplied” Standard 1.7(a). The justices also indicated Wednesday that the definition of remoteness could be a matter of opinion. Justice Ming Chin asked Goldman whether remoteness refers to the date the original discipline was imposed or the date it was terminated. “It’s certainly not remote if it’s the date of termination,” he said. Chief Justice George and Justice Joyce Kennard agreed, noting that Silverton had been back in practice less than two years before getting dinged again. When Justice Carlos Moreno asked whether there is any case authority that says the State Bar Court isn’t obligated to follow its standards, Clare said that the judges rely on precedent, not the standards themselves. “Sometimes they are just unjust,” he said of the rules, with the minimum punishment mandated occasionally being “too high.” At one point, Goldman told the justices that the State Bar doesn’t want any bright-line rule that would make their use less discretionary. But the chief justice responded immediately, noting that Standard 1.7(a) already has a built-in exception that lets the court use discretion. Baxter said he thought judges considering applying the standard should take into account the impact the lawyer’s offense has on the profession. He said it was hard for him to understand “that someone who’s been disbarred” — such as Silverton — “would play it so close to the line.” Justice Kathryn Mickle Werdegar questioned whether disbarment would be proper, considering the State Bar Court’s much lighter recommendation. “There’s quite a bit of disparity between a 60 days’ suspension and disbarment,” she said. Goldman argued that Silverton has had “30 years of seeing things his own way.” Allowing him to return to practice after a short suspension, he added, would be “a danger to the profession.” If that’s true, George asked, why didn’t the State Bar appeal the court’s order, as Silverton did? “In hindsight,” Goldman said, “we should have sought review.” A few State Bar prosecutors, including the new chief trial counsel, Scott Drexel, were on hand for the argument. The case is In re Silverton on Discipline, S123042. A ruling is expected in 90 days.

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