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MCLE Self-Assessment Test

New standards set for attorney discipline

By Amy Yarbrough
Staff Writer

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.

Karen Goodman

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 either factor.

A task force appointed in March 2014 and chaired by former State Bar Trustee Karen Goodman proposed the revised guidelines.

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 changes.

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.”