Recent Developments in Ethics

Langford.CarolWe all pay our State Bar dues, so what is happening there that might affect us? First, the State Bar has finally picked a new Commission to re-draft the Rules of Professional Conduct. What a fiasco the whole process was!

The first set of Rules was rejected by the Supreme Court with no Rule by Rule explanation of their misgivings. Instead, they broadly stated that the Rules needed to be more in line with national standards and not be so lawyer protectionist. Okay … but give the Commission some idea on how to go about it all, people!

The new Commission has a deadline of 2017 to finish an entire new set of Rules, as well as get them out for public comment. I really do not see it all being done by 2017, considering the first Commission took years to do the job; especially since a lot of the new members have never drafted a Rule in their lives. Good luck on that, I say, but let’s wish them the best.

In the meantime, the lawsuit between Joe Dunn, the previous State Bar Executive Director, and the State Bar is raging. Scott Drexel and Jim Towery left, and now it is Joe Dunn.

It seems like the job of executive director is a revolving-door position, no matter how smart and effective the person is. Anyone who takes the job is now on notice of the turnover. Why this is so, I do not know. People in the know say it is just State Bar politics on steroids. But it hurts the public’s and the court’s image of a self-regulating State Bar.

Even worse, it has caused an independent auditor to look both into Dunn’s expense forms and to investigate whether Discipline and Enforcement (and maybe Admissions) is doing its job. Heads will roll, because the State Bar is backlogged—especially Admissions. It now takes a new admittee with any kind of minor record at least a year to get moral character approval. It can take much longer.

Also being audited—MCLE compliance. But here’s an interesting statistic: The audits are not totally random. About 8.5 percent of people in the compliance group are audited, and half of those are chosen randomly. The others are people who were noncompliant before or have a history of administrative actions, for example, paying dues late.

The State Bar has been auditing since 2011, but before that, nothing. Despite everyone knowing they could be audited, especially now, 25 percent of those audited were noncompliant! Hard to believe, but true.

Last, I am seeing some trends in the disciplinary context of late. A lot of older men are being brought before the State Bar. These are usually attorneys who are in their late 60s and 70s, still working—not because they want to, but because they have to—they have young children and second wives, and the wives are not working. To be 73 years old with a child in college and another at age 15 would not be fun. But it is a sociological trend, and it is not going away.

I am also seeing more women get in trouble for petty theft. Interestingly enough, these women are not poor; in fact, they are educated from top schools and have the money to pay for what they steal. I think it is stress related and is likely compulsive.

Lawyers getting in fights or DUIs because they are on prescription drugs is making a comeback—I guess it never went away—with lawyers forgetting that they have to be fit to practice and it makes no difference if the drugs are prescribed by a doctor. A DUI is a DUI.

Last but certainly not least is the downloading of illegal pornography. Usually it is child porn, and arises in the context of the lawyer downloading non-child porn but images of a child are embedded. The Feds know their way around the Internet, and even if you have no intent, if an image of a child comes in the batch you download and you are caught, you are interim suspended from the practice of law. Not the best way to build your business.

And in law schools we are seeing more and more schools teaching marijuana law (wish that was taught when I went to law school. Kidding!), while law firms are merging up a storm and students are back in force to law schools. All good.


Carol M. Langford is a lawyer in Walnut Creek who specializes in representing lawyers and law students before the State Bar. She is also a lecturer at Boalt Hall, U.C. Berkeley School of Law.

 

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