Discipline Needs Its Deadlines

In 1993, the state Legislature passed a bill that would have added a statute of limitations to the State Bar Act. The proposed statute, part of the Omnibus Attorney Bill of Rights, required that a disciplinary complaint be filed within one year of discovery of the misconduct and that the bar file charges against the lawyer within two years of the complaint. That bill was not opposed by the State Bar but was vetoed by Gov. Pete Wilson.

The Omnibus Bill also contained a requirement that bar prosecutors turn over exculpatory information once the complaint became public or a Notice of Disciplinary Charges was filed.

In 1994, the Legislature passed AB2928, which required that the State Bar turn over exculpatory information. Since I was the draftsperson, the governor's office telephoned me for an explanation of the proposal. When they finally understood that the State Bar was the only known disciplinary agency without an obligation to disclose exculpatory information, they were surprised. At that time, the only other type of conduct besides attorney misconduct that lacked a statue of limitations was murder. The governor signed the bill, codified as Business and Professions Code Section 6085(b).

In 1995, the State Bar's Board of Governors enacted the present five-year period of limitations, known as Rule of Procedure 51, which has 11 exceptions. In 1998 and 1999, the State Bar essentially was shut down for a lack of funding caused by the ambush veto of Governor Wilson. The Board of Governors, who had created the period of limitations, suspended it. The prosecutors could, therefore, file on claims that were seven years old.

Twice in the last decade, the State Bar Conference of Delegates has passed a resolution seeking enactment of a statute of limitations for lawyer misconduct. The current resolution is in accord with Samuels v. Mix, 22 Cal.4th 1 (1999). There, the Supreme Court considered the need to strike a balance between resolving a matter on its merits and extinguishing stale claims. The court stated that enactment of a statute of limitation "belongs to the Legislature alone ... subject only to constitutional restraints."

The bar's Board of Governors again is poised to oppose the resolution at their April 6 meeting. Once again, the statute will crash and burn on the board's consent agenda, although many lawyers support it. The current resolution was sponsored by the Los Angeles County and Beverly Hills bar associations.

The Office of Trial Counsel, in its opposition contained in the board's agenda, cited Yokoseki v. State Bar, 11 Cal.3d 436 (1974). There, the underlying conduct occurred in 1963, and the civil proceedings were resolved in 1969. The ancillary State Bar complaint was asserted in 1970. Due to many factors, the State Bar hearing occurred in 1973. The basis of the respondent's claim of prejudice was based on the deaths of three crucial witnesses during the prior decade.

The court stated, "There is no limitation period applicable to disciplinary proceedings before the State Bar; mere lapse of time is no defense unless specific prejudice is shown."

The deaths of three essential witnesses were simply not good enough. I have used that case frequently to illustrate exactly why lawyers need a statute of limitations.

The currently proposed resolution has a five-year period. The Office of the Chief Trial Counsel is opposed because it lacks any tolling provisions. In 1993, the State Bar did not oppose the two-year statute because they assisted in modifying the bill to increase public protection. It was anticipated that they would have suggestions for modifications for this resolution, but not a word has been heard.

The touchstone of discipline is public protection. How is the public protected by a five-year, six-year or seven-year period until the matter goes to a formal notice? If the public knew how we treated one another, do you believe that it would have confidence in our ability to act as its champions and advocates?

My office has participated in three cases in which the conduct was 10 years old. Other professionals have statutes of limitations because the need to achieve finality outweighs the public interest in pursuing ancient misconduct. So don't get rid of those old client files; you may need them 10 years down the road.