New standards set for attorney discipline
By Amy Yarbrough
For the first time in nearly three decades, the State Bar
Board of Trustees last month approved the revision of standards for attorney
discipline, which are used to determine the appropriate sanctions and ensure
consistency in how cases are handled.
The revision marks the first substantive changes since the
guidelines were first adopted in 1986. Although each discipline case is decided
on its own facts and circumstances, the new standards make it clear that the
presumed sanctions are the starting point for imposing discipline, and the
degree of sanction can increase or decrease based on factors in aggravation and
mitigation. The standards are not binding, but weigh substantially on decisions
by the State Bar Court and the California Supreme Court, the ultimate arbiter
of attorney discipline. Any disciplinary recommendation that deviates from the
standards must include clear reasons.
“These standards provide clear and consistent guidelines for the public and
lawyers on the rules governing lawyers,” State Bar President Craig Holden said.
The new standards add several specific offenses: “representation of adverse interests,”
“breach of confidentiality,” “fee-splitting with non-lawyers” and “frivolous
litigation.” Previously, those were included in one catch-all provision.
In addition, the new standards add two new aggravating
factors that would warrant greater sanctions: “misrepresentation” and “high
level of vulnerability of the victim.” The previous standards did not mention
A task force appointed
in March 2014 and chaired by former State Bar Trustee Karen Goodman
proposed the revised
Although some minor language tweaks were done in 2013,
Goodman said the old standards were drafted back when the attorney discipline
system was just getting started.
“It certainly did not have a high focus on harm to the
client,” she said.
Addressing public feedback was a big part of the revision
process, Goodman said. She noted that during the final comment period in March,
there was only one response, and it didn’t deal with the substance of the
The ultimate goal was to make “really good standards that
have clarity,” she said. “Our job was to make a good product that would be
useful for a long period of time.”