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The second disbarment of Ronald Silverton was subject to widespread attention. The California Supreme Court’s action in the case of attorney Tamir Oheb was not. In both cases, decided a few weeks apart in June of this year, the Supreme Court did something it has rarely done: disapprove a State Bar Court recommendation. To judge by the number of opinions it produces, the Supreme Court has since 1991 all but withdrawn from the attorney discipline arena. Yet most decisions from the State Bar Court are merely recommendations because the Supreme Court, and not the State Bar, holds the constitutional power to regulate the profession. One result is that on the rare occasion that the Supreme Court does issue a discipline opinion, it is received by State Bar prosecutors as wisdom from on high and afforded significance that it may not warrant For example, the State Bar has read the rulings in Silverton and Oheb’s cases as a “message” from the top to get tougher on attorneys. The court’s rare interventions undermine the legitimacy of the State Bar Court � and also undermine confidence in the Supreme Court’s oversight of it. It’s as if a sleeping passenger in a car were to wake up and grab the wheel whenever the driver started veering off the road: far from comforting. Silverton’s story is well known, but his many reversals of fortune bear repeating. He was disbarred in 1975, and ultimately reinstated in 1992, on the fourth try. Five years later he was facing new discipline charges. He became a vocal critic of the State Bar and ran (unsuccessfully) for a seat on the State Bar’s board of governors. The discipline prosecutors also had their reversals of fortune. Initially, the State Bar Court hearing judge dismissed two of the five counts before trial; the remaining three counts were dismissed after trial. The State Bar appealed to the State Bar Court review department. The dismissal was, in turn, reversed and the case remanded for a new trial ( In the Matter of Silverton (Rev. Dept. 2001) 4 Cal.StateBarCt.Rptr. 252.) ( Silverton I). The State Bar asked for disbarment. Instead, the hearing judge recommended 60 days actual suspension. Both parties appealed that decision to the review department, the State Bar reiterating its demand for disbarment and Silverton arguing that his conduct was worthy of the absolute lowest level of discipline � admonition. The review department upheld the hearing department recommendation, again in a published decision, now disapproved, In the Matter of Silverton (Rev. Dept. 2004) 4 Cal.StateBarCt.Rptr. 643 ( Silverton II). The State Bar chose not to appeal Silverton II. But Silverton petitioned the Supreme Court for review. Like almost all such petitions, his was denied. However, the Supreme Court then took the remarkable step of taking up Silverton II on its own motion. In June, it disbarred Silverton in a published decision, In Re Silverton, (2005) 36 Cal.4th 81 ( Silverton III.) In Silverton III, the Supreme Court questioned why the State Bar Court did not follow standard 1.7(a), Standards for Attorney Sanctions for Professional Misconduct (Standards). Standard 1.7(a) provides for progressive discipline, each imposition of discipline to be greater in degree, unless the prior offense was so remote in time or so minimal in severity that such discipline would be unjust. The Supreme Court disapproved of the review department’s view that Silverton’s 1975 disbarment was remote in time, pointing out that Silverton was ineligible to practice for all but 22 months between his first disbarment and the beginning of the misconduct found by the State Bar Court. Time for the Supreme Court does not mean chronological time but time in the practice of law. Oheb involved an attorney who pleaded nolo contendere to two felony counts of violating Penal Code §549, accepting referrals of personal injury clients with reckless disregard for whether the referring party or the referred clients intended to make false or fraudulent insurance claims. Oheb had been involved with an alleged capper who had referred cases involving staged accidents. The State Bar sought a recommendation for Oheb’s summary disbarment in the State Bar Court, arguing that the summary disbarment statute, Bus. & Prof. Code §6102(c), applies to felony crimes that involve moral turpitude in their surrounding circumstances, not just felony crimes inherently involving moral turpitude. In the alternative, the State Bar argued that Oheb should be disbarred by application of Standard 3.2, which suggests disbarment for crimes involving moral turpitude, either inherently or in their surrounding circumstances, and a sanction less than disbarment only if the “most compelling mitigating circumstances predominate.” The hearing judge rejected the State Bar’s request for summary disbarment, finding that reserved for felony crimes inherently involving moral turpitude. Oheb was allowed a trial to introduce evidence regarding the facts and circumstances of the crime and mitigating evidence. The hearing judge found that the crime was surrounded by moral turpitude but declined to impose disbarment, finding that comparable case law suggested two years’ actual suspension. The hearing judge’s discipline recommendation was upheld in a published opinion ( In the Matter of Oheb (Rev. Dept. 2004) 4 Cal.StateBarCt.Rptr. 697). In its analysis, the review department cited Standard 3.2 but quickly moved to an analysis of comparable case law. It found very little mitigation. This time, the State Bar petitioned the Supreme Court for review. But rather than grant the State Bar’s petition, the Supreme Court, on its own motion, remanded the Oheb matter back to the review department of the State Bar Court, “with directions to vacate its recommendation and reconsider in light of . . . standard 3.2.” This happened on June 15, 2005, after the oral argument in Silverton III but before the opinion issued.
Within the space of a few weeks, the California Supreme Court gave two unmistakable indications that it disagreed with the State Bar Court’s application of the Standards. What is going on here? The Standards are a problem child in the area of discipline law. They were promulgated by the State Bar in 1986, when the former volunteer State Bar Court was criticized for its inconsistency. They were intended to promote consistency in light of the widely varying Supreme Court precedents and the court’s own statements that discipline is to be calculated on a “balanced consideration of (all) the relevant factors” including any mitigating circumstances ( Doyle v. State Bar (1976) 15 Cal.3d 973, 979). The Supreme Court was slow to warm to the Standards, quickly holding that it was not at all bound by them ( Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550). They were also quick to note where the Standards were “not faithful to the teachings of this court’s decisions” in mandating a mandatory one-year actual suspension for willful misappropriation ( Edwards v. State Bar (1989) 52 Cal.3d 28, 38). The Supreme Court eventually embraced them, even while noting their language is often so broad as to make them useless ( In re Morse (1995) 11 Cal.4th 184, 206). Ultimately, they held that the Standards should be given great weight ( In re Brown (1995) 12 Cal.4th 205, 220). Efforts to evolve a more precise set of guidelines have foundered on the sheer impossibility of reconciling the mass of Supreme Court case law into a more precise framework. A “balanced consideration of all relevant factors” does not easily reduce itself to a formula. We are probably stuck with the current, rather vague Standards. Do Silverton III and Oheb signal a retreat from the “balanced consideration of all factors” toward a rigid application of the Standards? That is the goal of the State Bar’s discipline prosecutor, the Office of Chief Trial Counsel. Time will tell if the State Bar Court takes that message. Given the painstaking work of the State Bar Court in attempting to reach just results consistent with Supreme Court precedent, it would be a tragic mistake if it were to move in that direction. The debate over the proper application of the Standards illuminates a bigger problem. Since the Supreme Court gave the State Bar Court its seal of approval with the “finality” rules in 1991 (CRC 951, et seq.), it has essentially abdicated the making of new law in this area, reviewing just a handful of attorney discipline cases. It accepts almost all State Bar Court discipline recommendations without comment; almost every petition for review by either side is summarily denied. The Supreme Court upheld this approach as consistent with due process ( In Re Rose (2000) 22 Cal.4th 430, Brown, J. and Kennard, J., dissenting). But the expansive delegation of authority to the State Bar Court has left the Supreme Court disconnected from hands-on experience with attorney discipline. The Standards were formulated by analyzing hundreds of Supreme Court precedents, boiling them down to essential principles. Those precedents are not being made anymore, leaving the Standards in danger of becoming an ossified take on the last century’s view of law practice. There is also the reality that the State Bar Court, for all its outstanding work, is not a constitutional court and is tainted by its association with the State Bar of California. It has worked hard to avoid this taint, dropping reference to the “State Bar of California” from its name and continually emphasizing its close relationship to the Supreme Court. The true fix for this problem, moving the State Bar Court directly under the control of the Supreme Court, does not seem to be imminent. A vital disciplinary jurisprudence needs more Supreme Court involvement. That involvement should not be a move toward knee-jerk reliance on the Standards but a reaffirmation of the Supreme Court’s “balanced consideration” approach to attorney discipline cases. Somewhere out there is the case that will allow the Supreme Court to re-enter the field. Let’s hope that they will know it when they see it. David Cameron Carr is an attorney in San Diego. A former State Bar discipline prosecutor, he now defends lawyers in discipline proceedings.

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