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State Bar officials believe some attorneys are so bad that they don’t deserve a second chance, and should be prohibited from practicing law for life. A proposal going before a State Bar committee today recommends that any lawyer who commits one of nine specific offenses � as basic as insurance fraud or as severe as murder � be permanently disbarred. Another recommendation would require disbarred lawyers guilty of lesser offenses to wait seven years before being permitted to seek reinstatement, and then have to retake, and pass, the state’s grueling bar examination. “It protects the public and protects the profession,” said Fresno-based State Bar governor Paul Hokokian. The recommendations, which will be discussed in Los Angeles today during a meeting of the State Bar Board of Governors’ Committee on Regulation, Admissions and Discipline Oversight � which Hokokian chairs � has already stirred up debate. Pro and con columns on the issue ran in the August edition of the California Bar Journal, the State Bar’s monthly in-house newspaper, with Wendy Borcherdt, a former public member of the Bar board, arguing that permanent disbarment would protect clients and San Diego lawyer David Carr claiming it wouldn’t make the public any safer. “The reinstatement process � can’t guarantee that a successful petitioner will never reoffend,” Carr wrote. “But it works and works well enough to protect the public and encourage the rehabilitation of erring attorneys. Permanent disbarment will do neither.” San Francisco solo practitioner Jerome Fishkin, who represents lawyers facing State Bar discipline, went further by arguing in an e-mail to the State Bar this week that California Supreme Court precedents and the State Bar’s own rules prohibit permanent disbarments. “The State Bar doesn’t have that legal power or authority,” he said in a telephone interview. “If the Bar really wants to attempt to create categories of permanent disbarment, it either has to change the State Bar act or go to the Supreme Court and seek a rule of court.” The State Bar’s proposal would permanently disbar attorneys who have repeatedly stolen client funds, intentionally corrupted the judicial process; committed murder; engaged in sexual misconduct; physically robbed, burgled or kidnapped someone; engaged in insurance fraud; committed malfeasance in public office; practiced law without a license; or have been disbarred before. Bar governors attending today’s committee meeting will decide only whether to send the proposal out for 90 days of public comment. A final decision by the full Board of Governors wouldn’t be made until early next year. Scott Drexel, the State Bar’s chief trial counsel, said the recommendation was “influenced by” the fact that in recent months at least four attorneys had either been disbarred for the second time or faced a repeat disbarment proceeding. “It really started us thinking again,” he said, “about whether there were certain things that attorneys could do or be involved in that were so serious that they should not be allowed to even seek to return to the practice of the law.” If the public sees attorneys practicing after extreme misconduct, Drexel said, “that tends to seriously reduce the respect people have for the law and lawyers.” Drexel said he anticipates lifetime disbarment affecting fewer than 20 lawyers a year. Hokokian, chairman of the discipline committee, said that sending the proposal out for comment gives opponents time to express their concerns. Los Angeles lawyer Diane Karpman, who also represents attorneys in discipline cases, said this week permanent disbarment could have the unintended effect of encouraging bad lawyers to practice without authorization. “If lawyers think they can be reinstated,” she said, “then there is a tether on their behavior that tends to make them behave in a more moral fashion.” Karpman also argued that a lifetime ban goes against the concept of rehabilitation. “If you don’t believe in rehabilitation, then everyone who engages in criminal conduct should be put away forever,” she said. “Do you believe in the hope that people can change or not?” Fishkin agreed. “None of us know what that person would be like five or 10 years from now,” he said. The State Bar’s other suggestion � for a seven-year waiting period before disbarred lawyers guilty of lesser offenses could seek reinstatement � is based on statistics revealing that most can’t show the appropriate rehabilitation, fitness to practice or legal knowledge after the current wait of five years. Statistics gathered by the Bar show that only about 33 percent of attorneys seeking reinstatement in less than seven years succeed, whereas more than 50 percent make it if they wait seven years or longer. Drexel said that’s because a longer waiting period gives attorneys more time to make restitution and to address any drug or mental health problems. State Bar officials also believe a longer waiting period could cut costs by resulting in fewer reinstatement cases. Drexel estimates that each reinstatement proceeding costs the State Bar between $35,000 and $40,000. Bar leaders also pointed out that members of the public can comment on the discipline system in general during hearings at State Bar offices in San Francisco on Nov. 21 and Los Angeles on Nov. 30.

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