The State Bar of California estimates that 10 percent of the approximately 190,000 California active-licensed attorneys have unreported criminal behavior. The bar has recently stepped up its efforts to locate those attorneys and bring proceedings against them, and unlike most discipline proceedings, these cases begin in the State Bar Court’s appellate division — called the review department.
If you are an attorney with a criminal conviction, you’re required to self-report your crime to the bar immediately. The bar recently issued new self-reporting guidelines and warned that the failure to report could itself result in discipline.
It’s not really possible (let alone ethical) to avoid getting caught. The bar is requiring most active-licensed attorneys to be re-fingerprinted by April 30, 2019, to avoid penalty. Once you submit your fingerprints, the California Department of Justice and the FBI will send information about any criminal offense to the bar. Going forward, the DOJ will notify the bar if you are arrested or convicted of a crime in the California system.
These efforts coupled with the existing reporting requirements applicable to the superior courts and to prosecutors mean that if you are convicted of a crime, the bar will learn about it. And you should expect that the bar will bring a proceeding against you based on your conviction—typically after your conviction is entered but before it is final as defined by Rule 9.10(a) of the California Rules of Court. That is because one of the bar’s core functions is to regulate and discipline attorneys. Criminal convictions are an inevitable target because under the State Bar Act and case precedent, most criminal convictions constitute cause for discipline, either because the conviction is a felony or a misdemeanor involving moral turpitude or because it involves what is defined as other misconduct warranting discipline.
I saw hundreds of these cases as a senior attorney and then assistant chief court counsel in the review department. Attorneys are often unprepared to grapple with the disciplinary consequences of their conviction, particularly while they are also dealing with the personal fallout of a criminal conviction. Keep six fundamental aspects of the unique State Bar proceedings in mind to help protect your law license.
First, the authorities. In a criminal conviction proceeding, California Supreme Court discipline cases, the review department’s published cases, the State Bar Act, Rule 9.10 of the California Rules of Court, the standards governing attorney discipline, the Rules of Procedure of the State Bar, and criminal law principles all come into play.
Second, your original conviction matters. Once convicted, you can challenge the disciplinary consequences of your conviction but not the conviction itself. If your conviction is entered as a felony, it will be treated as a felony for discipline purposes even if it is reduced to a misdemeanor as the result of post-conviction proceedings in criminal court. Convictions are also conclusive proof of your guilt and of the elements of the crime you committed. With this in mind, the time to negotiate a more favorable deal for attorney discipline purposes is before your conviction is entered by the criminal court.
Third, your discipline case will start in the review department as an appellate matter. Disciplinary proceedings ordinarily begin when the bar files charges in the hearing department, but your conviction proceeding will begin when the bar transmits a certified copy of your criminal conviction record to the review department and serves you with the transmittal.
Fourth, the review department can suspend your license for the duration of your criminal conviction proceeding, which is known as interim suspension. The review department will suspend your license if it determines that you have been convicted of a felony or of a misdemeanor that involves moral turpitude as a matter of law—the California Supreme Court most recently considered what constitutes moral turpitude in In re Grant, 58 Cal. 4th 469 (2014).
Attorneys seldom take advantage of opportunities to contest imposition of interim suspension, but if you have a lawyer experienced with State Bar appellate procedure, he or she should know to file a brief in the review department to argue that no grounds for interim suspension are present. You also are entitled to submit additional evidence from your underlying criminal proceeding, including trial transcripts. This evidence can be critical because the criminal conviction records transmitted to the review department are often incomplete.
Even if grounds for your suspension are present, you can still ask the review department not to suspend you in “the interest of justice” and “with due regard being given to maintaining the integrity of, and confidence in, the profession” pursuant to Business and Professions Code Section 6102 (a). Or you can request a stay or vacation of your suspension for any of these same reasons. This relief is rarely granted but can be justified on the basis of unique circumstances present in a particular case, and may be needed so you can keep practicing and earning an income.
Fifth, once your conviction is final, it is referred to the hearing department for a determination of the appropriate discipline following a hearing. You may waive finality and request an early referral if you wish to expedite your case. Referral, however, does not change your status if you are on interim suspension.
Sixth, your case will not be referred to the hearing department if your conviction is for a felony that involves theft, deceit, fraud or moral turpitude as a matter of law. Instead, once your conviction is final, the review department will recommend your summary disbarment to the Supreme Court. You are not entitled to a hearing in these cases, and you cannot argue that discipline less than disbarment is warranted based on mitigating circumstances. Still, you may file a brief in the review department to challenge the classification of your conviction as a summary disbarment crime. Crimes that have not been previously classified for discipline purposes deserve particular scrutiny. In addition, changes in criminal case law can call for a reclassification of a crime for discipline purposes.
Every criminal conviction threatens your good standing as an attorney. This high-level summary identifies just some of the issues that demand your immediate attention if you are arrested or convicted. Experienced counsel will build from here to mount an effective defense to your State Bar criminal conviction proceeding. Just because you made a mistake doesn’t mean you should necessarily lose your ability to make a living.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group, an appellate boutique with offices in San Francisco and Los Angeles. Jennifer Teaford is of counsel with the firm, and previously served as a senior attorney and then as assistant chief court counsel in the appellate division of the State Bar Court of California. Find out more about Teaford and the California Appellate Law Group at www.calapplaw.com.