When Ethics Traps Happen to Good Lawyers:

Does California Need to Ameliorate

the State Bar’s Approach to Discipline?

◊

Johann Christine Alcaraz

PLS 310: Communication Skills & Legal Ethics

Spring 2016

Introduction

On March 11, 2016, San Francisco’s Daily Journal published an article by David

Carr entitled “When the State Bar comes knocking”. Carr writes about the common

misconception when lawyers think: “Discipline is something that happens to bad

lawyers, not something that will happen to me.” However, Carr explains that “State bar

discipline can happen…even if you are not a bad lawyer. The Rules of Professional

Conduct and the State Bar Act”—also referred to as the law governing lawyers (LGL)

—“are long, complicated and detailed. Traps abound.”

Similarly, in her ABA Journal article “Top 10 Ethics Traps”, Stephanie Ward

writes that the time for straightforward ethics rules and professional common sense

has long gone. As law practice has become more complex, so have professional conduct

rules—at least in their practical application. Regardless, every lawyer is still expected

to be familiar with the Rules of Professional Conduct and the State Bar Act. But, even

good lawyers can overlook important parts of this body of law and unintentionally fail

to comply. Thus, the term “ethics trap” has progressed to its connotation . As professor

Stephen Gillers from the New York University School of Law puts it, “There are still

bright lines, but there are lots of ambiguities…If you think it’s just about the basics,

you’re on the road to perdition.”

Ethics Traps

Rule of Professional Conduct 3-310(f)

For example, when Carr was still working in the Office of Chief Trial Counsel

(OCTC), many of the attorneys in the discipline prosecutor’s office were unaware of

Rule of Professional Conduct 3-310(f), which requires that an attorney obtain their

client’s written permission to accept fees from a third party. In all fairness,

infringement was hardly ever charged until recently. Sometime in the last 15 years, the

OCTC has begun to charge violations of this rule more commonly, even if it is seldom as

a stand-alone violation.

Rule of Professional Conduct 4-100(b)(3)

An example of a more unclear ethics trap is Rule of Professional Conduct

4-100(b)(3), which states that an attorney has a duty to render appropriate accounts to

a client for a fee that has been paid in advance, even if the client has not asked for an

accounting of what was done to earn the fee. Carr submits that perhaps many are

oblivious to this rule because “it seems at odds with Business and Professions Code

Section 6148(c), which says that an attorney has no obligation to provide a bill to the

client unless they request one.”

Expectations vs. Reality

Circling back to Stephanie Ward’s “Top 10 Ethics Traps”, we see other cautions

for attorneys to take heed such as fiduciary duties to a former employer or law firm,

overlooking marketing rules (especially on the Internet), and fee agreements, among

other things. While these disciplinary constructs are all well and good in theory, the ap-

plication leaves much to be desired. There appears to be a distasteful discrepancy be-

tween how the discipline process should ideally be administered and the actual realistic

administration.

John Steele, cofounder of the online Legal Ethics Forum, highlights the common

perception of California attorneys towards California’s law governing lawyers:

I've often thought that a state with about 10% of the country's population

and about 12% of the active lawyers ought to have one of the most

sophisticated LGL regimes in the entire country. We don't. For reasons

that elude me, we appear to have a provincial approach, backwards rules,

a non-transparent state bar, and a lack of forward thinking.

Dunn v. State Bar of California , (L.A. Super. Ct., filed Nov. 13, 2014)

Others chime in on the forum discussing the severe intra-bureaucratic strife that

inevitably informs the California Bar’s allegedly unscrupulous formal structure. In

relation to current events, the Bar’s former executive director Joseph L. Dunn filed suit

against the Bar with claims that catalyzed scrutiny towards their operations and

disciplinary execution.

Discipline Process

In fact, Carr asserts that the disciplinary authorities are not your friends.

Although they can be civil, even friendly, the discipline process is adversarial. He writes,

“Some lawyers cling to an outdated notion that the State Bar of California is ‘our’ bar

association. It is not. It is a government consumer protection agency.” Instead, the

discipline system is a bureaucracy modeled on criminal prosecution.

First, there is the Office of Chief Trial Counsel (OCTC) which serves as the

prosecution office with the Intake Office and Enforcement Office as sub-branches. Then,

there is the State Bar Court (SBC) that serves as the site for adjudication. A lawyer

navigating through this adversarial system is faced with expedited time-constraint

challenges with a “fast track” litigation model in the SBC as well as an expectation to

adhere to additional rules set forth in the State Bar Rules of Procedure. In short,

alongside Carr’s article, many critics express disdain towards the seemingly unending

number of quirks and nuances of a complicated disciplinary system.

Conclusion: Something to Ponder

In conclusion, the aforementioned remarks ironically beg the question: Does

California need to ameliorate the State Bar’s approach to discipline? A comprehensive

evaluation of this question is beyond the scope of this paper. Yet, between the

increasingly prevalent caveats and imputations based on ethics traps, alongside an

adversarial and convoluted disciplinary system modeled on criminal prosecution, is it

not ironic that the very institution that is supposed to uphold ethics may need to

evaluate their own procedures and conduct? Surely, the question is something to

ponder for the sake of seeking appropriate and judicious recourse for California

lawyers.

Bibliography

Daily Journal

“When the State Bar comes knocking”- David C. Carr, March 11, 2016

“Dunn sues State Bar after his ouster”- Don J. DeBenedictis, November 2014

ABA Journal

“Top 10 Ethics Traps” by Stephanie Francis Ward Nov. 1, 2007

http://www.abajournal.com/magazine/article/top_10_ethics_traps

Legal Ethics Forum

Nov. 13, 2014

http://www.legalethicsforum.com/blog/2014/11/joe-dunn-fired-executive-director-of-california-

state-bar-sues-upon-termination.html

California Bar’s Rule of Professional Conduct

Section 3-310(f)

http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3310.aspx

Section 4-100(b)(3)

http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule4100.aspx

California Business & Professions Code: State Bar Act

Section 6148(c)

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=6148.