When to report attorney criminal matters to the State Bar

No one goes into the practice of law intending to engage in criminal conduct. Life happens. People develop addictions, face mental health challenges, or find themselves in situations they never expected. So, what happens when you, a licensee of the State Bar of California, are charged with a crime? This area is full of traps for the unwary, so it is best to do some research and ask the right questions. The key here is to prevent your lack of knowledge of State Bar procedures from making things worse.

Attorneys often assume that, unless a criminal situation directly involves the practice of law or some sort of fraud, the State Bar has no business getting involved. This is not true. The State Bar has a great deal to say about any felony matter and more to say than many realize about less serious offenses like DUIs or road rage incidents. In fact, the California Supreme Court held that an attorney's DUI conviction was most certainly the State Bar's business. In the 1990 Kelly case, the attorney was convicted of a second DUI while on probation for a prior offense. The State Bar Review Department issued discipline including a public reproval, three years on probation, and referral to a State Bar alcohol and substance abuse program. The Supreme Court affirmed, finding that Kelly's behavior "evidenced both a lack of respect for the legal system and an alcohol abuse problem. Both problems, if not checked, may spill over into petitioner's professional practice and adversely affect her representation of clients and her practice of law. Our task in disciplinary cases is preventative, protective and remedial, not punitive."

Will the State Bar find out? Yes, it's likely they will. In addition to victims reporting, court clerks and District Attorneys may be required to report under Business & Professions Code section 6101. Also, the Rules of Professional Conduct's new rule 8.3 may encourage other attorneys to report the matter. Note that reporting is not limited to California crimes. If you are indicted in Florida for felony DUI, you must report the Florida action to the California State Bar. Forty-five states, including California, are members of the Interstate Driver's License Compact and automatically report to the National Driver Registry. Even if no one else reports, you may well have an obligation to fess up the situation to the State Bar yourself.

Business & Professions Code section 6068(o) requires licensees to report seven events to the State Bar and failing to timely report when required to do so is a separate ethical violation. Two of the seven events are relevant for this discussion: the filing of a criminal indictment or information, and conviction of a felony or certain misdemeanors.

First, licensees of the State Bar are required to report the "bringing of an indictment or information charging a felony against the attorney" within 30 days. Note the triggering event here is not an arrest or a conviction, but simply the filing of an information or indictment. It does not matter if you later plead the matter down to a misdemeanor or the charges are dropped, even if charges are reduced or dropped within the 30 days. The filing of the information or indictment triggers the reporting requirement.

The second reporting event is a criminal conviction. "Conviction" here includes a guilty verdict, a plea of guilty, or a no contest plea. Any felony conviction must be reported to the State Bar within 30 days. It doesn't matter if the felony had nothing to do with the practice of law. By comparison, not all misdemeanor convictions are reportable events. Attorneys are only required to report misdemeanor convictions if the misdemeanor involves 1) the practice of law, 2) a client, or 3) a crime, the elements of which require "improper conduct" of an attorney. What is considered "improper conduct" for an attorney? Think any act of dishonesty, a violation of a court order, or an act of moral turpitude. Also included in the definition of improper conduct is attempting, conspiring, or soliciting another person to commit either a felony or a misdemeanor. Examples of reportable misdemeanors from actual cases, include getting into a fistfight during a deposition, vandalism of a client's car, forging a document, receiving stolen property, and shoplifting.

A special word about DUIs as they are the most common criminal matter referred to the State Bar. When I was prosecuting cases for the Office of Chief Trial Counsel, first-time misdemeanor DUIs were not disciplinable events unless they involved some seriously bad facts, e.g., lying to police officers, child endangerment, etc. The second misdemeanor DUI, however, would trigger a State Bar discipline case, particularly if the attorney was still on probation from a prior DUI conviction as was the case in Kelly. If you are unfortunate enough to find yourself in a second DUI situation, seek advice from an experienced defense attorney. They can walk you through your options.

Now that you know you need to report, how do you go about it? There are forms on the State Bar's website. From the State Bar's homepage, select "Attorneys" then "Conduct and Discipline" which gives a menu including "Self-Reporting FAQs." The firms and plenty of additional information can be found there.

What does the State Bar do with the report? It depends. If you report a felony indictment, the State Bar may simply monitor the case. If the felony indictment is serious enough, such as gross vehicular manslaughter or embezzlement, the State Bar Court may order an interim suspension pending the outcome of the criminal case. Convictions for felonies always result in some State Bar action. Misdemeanor convictions will be reviewed to determine if the matter involves moral turpitude or other conduct which may warrant discipline. If so, then the matter will be referred to the State Bar Court for discipline proceedings.

Again, while you probably don't plan to be the subject of criminal proceedings, in the unlikely event you do find yourself in that situation, you will know how not to make things worse for yourself with the State Bar.

The Klinedinst PC Ethics and Risk Management Team writes a monthly Practical Ethics Column to assist California Practitioners understand cutting edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors--Heather L. Rosing, Dave Majchrzak, Christine C. Rosskopf, and Joanna Storey--can be found here: https://klinedinstlaw.com/practice/legal-ethics-law-firm-risk-management.