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You've Been Formally Prosecuted in State Bar Court. Now What?

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By Jonathan R. Tung, Esq. on August 04, 2016 2:55 PM

You worked hard for your license to practice law. You studied the LSAT, got into school, passed the bar and passed moral character and fitness... and a single ethics violation means it could all be taken away, just like that.

It's all very scary stuff about a system that very few attorneys know about -- though it haunts our thoughts. How do ethics hearings work? What is this thing called the State Bar Court? And what happens when attorneys are prosecuted in it?

Power of Life and Death in California

At least in California, the state bar has its own separate court system staffed with independent professional judges who hear exclusively attorney discipline cases. The State Bar Court of California is the only one of its kind in the country. This probably has something to do with the fact that California is the only jurisdiction that does not adopt the Model Rules.

One of the most common ways attorney-client matters turn ugly, and lawyers end up facing ethics complaints, is the disgruntled client who complains (sometimes without good cause) to the state bar. Fortunately, a good many of those complaints are reviewed by the bar, dismissed, and the letters get tossed in the recycling bin.

But every so often, the state bar review reveals something that could stand a burden of production and sends a complaint over to the Office of Chief Trial Counsel.

What You Can Expect

You'll know that formal proceedings have been brought against you because you'll be mailed a Notice of Disciplinary Charges (aka "NDC"). No personal service is necessary; it will just show up in the mail one day. We hope your address is up-to date.

The NDC will require you to respond to the complaint (which is prosecutorial in nature, always remember) and you'll have to provide an Answer.

In the meantime, State Bar Court pleadings are then posted on the State Bar's website under your name. So, it behooves you to give a more thorough and complete explanation of your side of the story. But then again, you never want to say so much as to give prosecutors more ammo.

State Bar Court procedures do not follow the typical civil or criminal court track. The court is largely administrative and hearsay frequently makes its way into court. This makes ugly things said on paper that much easier to be used against you. However, if you or your skilled-ethics attorney are good, this can be used as an opportunity to poke holes in the case against you. But please, do not go about this pro-se.

Possible Outcomes

Hopefully, you are exonerated of all charges. It only cost you time, thousands of dollars, and some of your life-force -- but you've been vindicated. But if you're found guilty, you can be slapped with any number of different penalties. The most lenient is a form of probation. The most sever is disbarment.

Disbarment is usually reserved for those ethics cases that involve commingling, dipping into client funds, or something really ribald. Still, you don't want to be standing in State Bar Court (or before your state's ethics committee).

If you get a letter from your state bar alerting you of an ethics complaint against you, take a deep breath, grit your teeth and lawyer up. If you truly didn't do anything wrong, this could end up going well for you. Ethics complaints are common, but truly -- you have the power to help yourself.

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