Private and public reprovals for attorney misconduct are the lowest form of actual discipline imposed by the State Bar, but they can still tarnish your image, cost you clients, and hurt your practice. They provide no end of amusement to, and harassment from, opposing counsel, especially when private reprovals are imposed in public proceedings, and thus become public.
Business and Professions Code Section 6077 authorizes the State Bar to discipline its members by means of a reproval, private or public. A reproval is defined under the "Standards for Attorney Sanctions" as a censure or reprimand issued by the Supreme Court; or, pursuant to the State Bar Rule of Procedure 5.127. A reproval, private or public, becomes a part of your permanent State Bar membership record. It is interpreted as a red flag in evaluating future complaints and constitutes an aggravating factor in any later disciplinary proceeding.
Our analysis of recently reported cases indicates that most public reprovals result from one of three areas: misdemeanor criminal convictions not related to the practice of law, low level violations of the Rules of Professional Conduct or Business and Professions Code not resulting in significant client harm, and failure to comply with conditions attached to previously imposed discipline or agreement in lieu of discipline.
Recent reported cases have imposed a public reproval on attorneys convicted of a second offense of driving under the influence or driving under a suspended or revoked license, misdemeanor shoplifting convictions, domestic disputes such as spousal battery and violation of restraining orders, and the age old crime of soliciting prostitution. While they may be morally reprehensible, these crimes do not involve the practice of law and most often are not accompanied by acts of moral turpitude. The exception is shoplifting where the amount is often less than $100. Attorneys are reported to have taken books from Barnes and Noble, software from Fry's Home Electronics, food from the grocery store, and a purse from Nordstrom.
A second category of cases involve "low level" disciplinary offenses. These cases encompass multiple instances where the attorney has failed to perform and/or communicate with a client, a single failure to return unearned attorney fees under $1500 upon withdrawing from a case, and failure to turn over the complete original client file to new counsel upon withdrawal.
Certain conflicts cases where appropriate waivers were not signed amongst multiple clients have resulted in reprovals, as have cases where the attorney entered into a business transaction with a client without advising of the right to seek independent legal counsel and affording the client the time to do so. A failure to report judicial sanctions of over $16,000 to the State Bar also resulted in a public reproval.
The final category of cases involve the failure by an attorney to comply with a condition attached to a prior private reproval or to comply with a condition attached to an agreement in lieu of discipline. California Rule of Court 9.19, State Bar Rule of Procedure 5.128, and Standard for Attorney Sanctions for Professional Misconduct 1.1 permits the State Bar to attach reasonable conditions to a public or private reproval just as it does with suspensions. Thus even though an agreement in lieu of discipline is not discipline itself, violation of a condition attached to the agreement can result in a separate public disciplinary proceeding where a public reproval or worse might be imposed.
Reasonable duties or conditions fairly related to the acts of professional misconduct and surrounding circumstances found or acknowledged by the attorney may include any of the following conditions, which require the attorney to: make specified restitution or satisfy a judgment; take and pass an examination in professional responsibility; undertake treatment at his or her own expense for medical, psychological or psychiatric conditions or for problems of alcohol or substance abuse; undertake educational or rehabilitative work at his or her own expense regarding one or more fields of substantive law or law office management; be supervised by a probation monitor referee and report to the State Bar the manner in which client funds or trust funds are handled (certified to by an accountant, if required) and such other reports as may be reasonable and appropriate in assessing the member's compliance with any duties or conditions imposed; and any other duty or condition consistent with the purposes of imposing a sanction for professional misconduct.
In all instances, the attorney received what is otherwise non-public discipline or no discipline at all, only to find themselves being publicly reproved for a failure to timely comply with a condition they had agreed to comply with in order to keep matters private to begin with.
Public reprovals are a form of public censure for professional misconduct even though they may arise from conduct not directly related to the practice of law. They become a part of your membership record and are posted on the Internet for the whole world to see.
A public reproval may not spell the death of your practice but it can tarnish your image with attendant shame and embarrassment. Opposing counsel will welcome the opportunity to rub your nose in the reproval. Public discipline will ordinarily give the reasonable client cause for pause. Worse yet, a reproval can hurt your business. This is especially true of class action attorneys who must be holier than Caesar's wife, and attorneys wanting to appear pro hac vice in other jurisdictions.