California Bar Journal
CBJ - July 2012 #06.
Ethics byte-Focus returns to tighter discipline with Supreme Court's return of 24 cases
The California LawyerJuly 2012Ethics byte-Focus returns to tighter discipline with Supreme Court's return of 24 casesRecent signs suggest that the discipline pendulum (which shifts every decade or two) is about to radically switch once again. On Thursday, June 21, in an unprecedented move, the Supreme Court of California, which by law has the last word in attorney discipline, referred 24 (yes, twenty-four) cases back to the State Bar Court. These cases represent many hours of heavily negotiated, fact-intensive, detailed stipulations, which were signed, sealed and delivered to them. The ink was already dry on these settlements, in which the respondents, trial counsel, and State Bar Court judges had all signed off. In the past, some in the legal profession had assumed the Supreme Court would merely "rubber stamp" these State Bar Court's determinations. Obviously, that's not true anymore.
Every year, hundreds of disciplinary stipulations are approved. This is a long, tedious process, involving the application of case precedents and the balancing of mitigating and aggravating factors. "The 24" were returned for "further consideration of the recommended discipline in light of the applicable attorney discipline standards. See In Re Silverton (2005) 36 Cal. 4th 81, 89'94; and In Re Brown (1995) 12 Cal. 4th 205, 220.)"
Both of those cases were returned for imposition of greater discipline. Silverton is iconic as one of the very few double disbarment cases. Inferentially, the sanctions in these 24 cases are insufficient. However, are there some discernable trends we can glean from these rejects? Obviously, because these cases are still "in play," we can't discuss the particulars, but some overarching trends appear to be clear. About half of the cases involved financial shenanigans or "loan modifications." This is to be expected when you consider that the State Bar allocated vast resources to the Loan Modification Task Force, and more importantly, that people were losing their homes because of these situations.
"The 24 cases" are sending a strong message that sharing fees with a non'lawyer is not just going to be a slap on the wrist. Quite a few involve this circumstance, prohibited by...