Investigations, Examining Committee, Subpoenas, And Other Proceedings - Attorneys - Business & Professions - CA

Section § 6043.5

If someone knowingly files a false and harmful complaint against a lawyer with the State Bar, they can be charged with a misdemeanor. The State Bar has the option to inform the district or city attorney to consider prosecuting the person who made the untrue complaint.

(a) Every person who reports to the State Bar or causes a complaint to be filed with the State Bar that an attorney has engaged in professional misconduct, knowing the report or complaint to be false and malicious, is guilty of a misdemeanor.

(b) The State Bar may, in its discretion, notify the appropriate district attorney or city attorney that a person has filed what the State Bar believes to be a false and malicious report or complaint against an attorney and recommend prosecution of the person under subdivision (a).

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Section § 6044

The chief trial counsel of the State Bar in California can start investigations on their own, even if no formal complaint has been made. They look into issues related to disciplining lawyers, practices they suspect might break certain rules, and other matters that fall under the State Bar's authority.

The chief trial counsel, with or without the filing or presentation of any complaint, may initiate and conduct investigations of all matters affecting or relating to:

(a) The discipline of the licensees of the State Bar.

(b) The acts or practices of a person whom the chief trial counsel has reason to believe has violated or is about to violate any provision of Articles 7 (commencing with Section 6125) and 9 (commencing with Section 6150) of this chapter.

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Section § 6044.5

This law section explains that if a lawyer is being investigated for misconduct that could lead to criminal charges or disciplinary actions in another place, the State Bar must share information confidentially with relevant criminal or disciplinary agencies. This information, which is not normally public, can also be shared with government agencies that enforce laws or handle professional licensing, and with the Judicial Nominees Evaluation Commission regarding candidates for judicial appointments.

(a) When an investigation or formal proceeding concerns alleged misconduct which may subject a licensee to criminal prosecution for any felony, or any lesser crime committed during the course of the practice of law, or in any manner that the client of the licensee was a victim, or may subject the licensee to disciplinary charges in another jurisdiction, the State Bar shall disclose, in confidence, information not otherwise public under this chapter to the appropriate agency responsible for criminal or disciplinary enforcement or exchange that information with that agency.

(b) The Chief Trial Counsel or designee may disclose, in confidence, information not otherwise public under this chapter as follows:

(1) To government agencies responsible for enforcement of civil and criminal laws or for professional licensing of individuals.

(2) To members of the Judicial Nominees Evaluation Commission or a review committee thereof as to matters concerning nominees in any jurisdiction.

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Section § 6046

This law allows a board to create a group, called the examining committee, consisting of 19 members. This committee is responsible for checking if law applicants meet the necessary requirements to practice law. Once they confirm these requirements are met, they can recommend the applicants to the Supreme Court for admission. The committee includes 10 lawyers or judges and 9 public members who are not lawyers. At least one lawyer in the group must be a relatively new lawyer, having been admitted within the last three years.

The board may establish an examining committee having the power:

(a) To examine all applicants for admission to practice law.

(b) To administer the requirements for admission to practice law.

(c) To certify to the Supreme Court for admission those applicants who fulfill the requirements provided in this chapter.

The examining committee shall be comprised of 19 members, 10 of whom shall be licensees of the State Bar or judges of courts of record in this state and nine of whom shall be public members who have never been licensees of the State Bar or admitted to practice before any court in the United States. At least one of the attorney members shall have been admitted to practice law in this state within three years from the date of the member’s appointment to the examining committee.

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Section § 6046.5

This law describes how public members of a particular examining committee are appointed in California. Nine public members in total are appointed, with three chosen by the Senate Rules Committee, three by the Speaker of the Assembly, and three by the Governor. Usually, these members serve for four years. However, when initially appointed, some serve for two years to ensure staggered terms going forward. These public members share the same rights and duties as attorney members, except they cannot help draft questions for the California bar exam.

Three of the public members of the examining committee shall be appointed by the Senate Rules Committee, three of the public members shall be appointed by the Speaker of the Assembly, and three of the public members shall be appointed by the Governor. They shall serve for a term of four years, except that of the initial public members so appointed, two shall serve for two years and four shall serve for four years, as shall be determined by lot. The public members appointed pursuant to the amendment of this section during the 1987–88 Regular Session of the Legislature shall serve for four years. The public members shall have the same rights, powers, and privileges as any attorney member except that such a member shall not participate in the drafting of questions submitted to applicants on the California bar examination.

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Section § 6046.6

This section outlines how California's bar exam is managed. If the exam is going to change significantly in a way that affects how applicants need to study, there has to be a two-year notice, unless it's an optional change. The committee responsible for the exam also has to work with the Law School Council. Additionally, the exam can use a method called scaling to keep its difficulty level consistent every year.

(a) The examining committee shall not alter the bar examination in a manner that requires the substantial modification of the training or preparation required for passage of the examination, except after giving two years’ notice of that change. This requirement does not apply to a change in the bar examination that is applicable only at the option of the applicant.

(b) The examining committee shall communicate and cooperate with the Law School Council.

(c) Scaling may be used on the bar examination for the purpose of maintaining an examination of uniform difficulty from year to year.

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Section § 6046.7

This law states that a specific committee is responsible for overseeing unaccredited law schools in California that offer a Juris Doctor (J.D.) degree but are not approved by the American Bar Association or the Committee of Bar Examiners. These schools must pay a fee to cover the costs of their regulation and oversight. Additionally, other funds may be used to help keep the cost of legal education affordable while still covering the oversight expenses.

(a) Notwithstanding any other law, the examining committee shall be responsible for the approval, regulation, and oversight of degree-granting unaccredited law schools that meet both of the following:

(1) Award the juris doctor (J.D.) professional degree in California.

(2) Are not approved by the American Bar Association or the Committee of Bar Examiners.

(b) The Committee of Bar Examiners shall assess and collect a fee from unaccredited law schools in an amount sufficient to fund the regulatory and oversight responsibilities imposed by this section. Nothing in this subdivision precludes the board of trustees from using other funds or fees collected by the State Bar or by the examining committee to supplement the funding of the regulatory and oversight responsibilities imposed by this section with other funds, if that supplemental funding is deemed necessary and appropriate to mitigate some of the additional costs of the regulation and oversight to facilitate the provision of a legal education at an affordable cost.

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Section § 6046.8

This law requires the board of trustees to review the California bar exam every seven years, or more often if the Supreme Court asks. They need to check if the exam really tests the basic skills new lawyers need. If necessary, they should suggest changes to the exam or the passing score and report these findings to the Supreme Court and the Legislature by March 15, 2018, and every seven years after that. However, the report due in 2025 can be delayed for up to seven years if there is a new bar exam introduced following the Supreme Court's guidelines.

(a) At least once every seven years, or more frequently if directed by the Supreme Court, the board of trustees shall oversee an evaluation of the bar examination to determine if it properly tests for minimally needed competence for entry-level attorneys and shall make a determination, supported by findings, whether to adjust the examination or the passing score based on the evaluation.

(b) The board of trustees shall report the results of the evaluation and any determination regarding adjustment in the passing score to the Supreme Court and the Legislature no later than March 15, 2018, and at least every seven years from the date of the previous report.

(c) Notwithstanding subdivision (b), the report due in 2025 shall be deferred for a period of time not to exceed seven years from the deployment of a new bar examination developed in accordance with the order of the California Supreme Court.

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Section § 6047

This law allows an examining committee to create rules to fulfill qualification requirements, but these rules need the board's approval first.

Subject to the approval of the board, the examining committee may adopt such reasonable rules and regulations as may be necessary or advisable for the purpose of making effective the qualifications prescribed in Article 4.

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Section § 6049

This section explains the powers of the State Bar Court and involved parties during trials and investigations. The court can gather evidence, administer oaths, and require witnesses and documents to be present through subpoenas. Similarly, the chief trial counsel can also use subpoenas for investigations. In formal proceedings, all involved parties have the power to demand witnesses and documents via subpoenas.

(a) Upon the trial and hearing of all matters, the State Bar Court may do all of the following:

(1) Take and hear evidence pertaining to the proceeding.

(2) Administer oaths and affirmations.

(3) Compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the proceeding.

(b) In the conduct of investigations, the chief trial counsel or his or her designee, may compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the investigation.

(c) In the conduct of all formal proceedings, each party may compel, by subpoena, the attendance of witnesses and the production of books, papers, and documents pertaining to the proceeding.

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Section § 6049.1

This law says that if a lawyer licensed in California has been found guilty of professional misconduct in another state or territory, this can be used as solid proof in California that the lawyer misbehaved. However, the California Bar can create fast-track procedures to determine whether or not to discipline the lawyer here and what penalties to impose. During this expedited process, they will consider how severe the penalty should be, whether the misconduct would be punishable under California rules, and if the other jurisdiction's process was fair and upheld constitutional rights. The lawyer must prove that there are reasons not to discipline them in California. Additionally, parts of the record from the other state can be used as evidence. This section doesn't stop California from starting its own proceedings based on misconduct in another area.

(a) In any disciplinary proceeding under this chapter, a certified copy of a final order made by any court of record or any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys, of the United States or of any state or territory of the United States or of the District of Columbia, determining that a licensee of the State Bar committed professional misconduct in such other jurisdiction shall be conclusive evidence that the licensee is culpable of professional misconduct in this state, subject only to the exceptions set forth in subdivision (b).

(b) The board may provide by rule for procedures for the conduct of an expedited disciplinary proceeding against a licensee of the State Bar upon receipt by the State Bar of a certified copy of a final order determining that the licensee has been found culpable of professional misconduct in a proceeding in another jurisdiction conducted as specified in subdivision (a). The issues in the expedited proceeding shall be limited to the following:

(1) The degree of discipline to impose.

(2) Whether, as a matter of law, the licensee’s culpability determined in the proceeding in the other jurisdiction would not warrant the imposition of discipline in the State of California under the laws or rules binding upon licensees of the State Bar at the time the licensee committed misconduct in such other jurisdiction, as determined by the proceedings specified in subdivision (a).

(3) Whether the proceedings of the other jurisdiction lacked fundamental constitutional protection.

The licensee of the State Bar subject to the proceeding under this section shall bear the burden of establishing that the issues in paragraphs (2) and (3) do not warrant the imposition of discipline in this state.

(c) In proceedings conducted under subdivision (b), the parties need not be afforded an opportunity for discovery unless the State Bar Court department or panel having jurisdiction so orders upon a showing of good cause.

(d) In any proceedings conducted under this chapter, a duly certified copy of any portion of the record of disciplinary proceedings of another jurisdiction conducted as specified in subdivision (a) may be received in evidence.

(e) This section shall not prohibit the institution of proceedings under Section 6044, 6101, or 6102, as may be appropriate, concerning any licensee of the State Bar based upon the licensee’s conduct in another jurisdiction, whether or not licensed as an attorney in the other jurisdiction.

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Section § 6049.2

This law says that in disciplinary proceedings involving lawyers, you can use testimonies from previous legal cases if the lawyer was involved in those cases. The testimony must be relevant, and it can be presented through transcripts even if the witness isn't available to testify again. However, the State Bar Court can request the witness to testify in person if needed and might refuse to use a transcript if the original testimony didn't include a chance for proper questioning.

In all disciplinary proceedings pursuant to this chapter, the testimony of a witness given in a contested civil action or special proceeding to which the person complained against is a party, or in whose behalf the action or proceeding is prosecuted or defended, may be received in evidence, so far as relevant and material to the issues in the disciplinary proceedings, by means of a duly authenticated transcript of such testimony and without proof of the nonavailability of the witness; provided, the State Bar Court may order the production of and testimony by such witness, in lieu of or in addition to receiving a transcript of his or her testimony and may decline to receive in evidence any such transcript of testimony, in whole or in part, when it appears that the testimony was given under circumstances that did not require or allow an opportunity for full cross examination.

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Section § 6050

If someone receives a subpoena to appear and testify or to provide documents, and they refuse to show up, refuse to testify, or can't produce the requested documents, they are considered to be in contempt of the group that issued the subpoena.

Whenever any person subpoenaed to appear and give testimony or to produce books, papers or documents refuses to appear or testify before the subpoenaing body, or to answer any pertinent or proper questions, or to produce such books, papers or documents, he or she is in contempt of the subpoenaing body.

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Section § 6051

If someone does not obey a subpoena from the State Bar Court, the court can ask the superior court to get involved. The superior court may send an order to have the person brought in by the sheriff. Once they are in court, the individual can explain or apologize for not complying, similar to how it's handled in civil cases. Alternatively, the court can ask the person to explain their absence at a scheduled time. If the subpoena was valid and the person has no good reason for ignoring it, the court can order them to come in, testify, or show documents. Not following the court's orders can lead to being charged with contempt.

The State Bar Court or the chief trial counsel may report the fact that a person under subpoena is in contempt of the subpoenaing body to the superior court in and for the county in which the proceeding, investigation or other matter is being conducted and thereupon the court may issue an attachment in the form usual in the superior court, directed to the sheriff of the county, commanding the sheriff to attach the person and immediately bring him or her before the court.

On the return of the attachment, and the production of the person attached, the superior court has jurisdiction of the matter, and the person charged may purge himself or herself of the contempt in the same way, and the same proceedings shall be had, and the same penalties may be imposed, and the same punishment inflicted, as in the case of a witness subpoenaed to appear and give evidence on the trial of a civil cause before a superior court.

In lieu of the procedure specified above, the court may enter an order directing the person alleged to be in contempt to appear before the court at a specified time and place and then and there show cause why he or she has not attended or testified or produced the writings as required. A copy of the order shall be served upon that person. If it appears to the court that the subpoena was regularly issued and no good cause is shown for the refusal to appear or testify or produce the writings, the court shall enter an order that the person appear, testify, or produce writings, as the case may be. Upon failure to obey the order, the person shall be dealt with as for contempt of court.

A proceeding pursuant to this section shall be entitled “In the Matter of (state name), Alleged Contemnor re State Bar (proceeding, investigation or matter) No. (insert number).”

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Section § 6051.1

If someone wants to cancel or dismiss a subpoena that's been issued under a particular section (6049), they need to do so through the State Bar Court.

A motion to quash a subpoena issued pursuant to Section 6049 shall be brought in the State Bar Court.

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Section § 6052

The State Bar Court and the chief trial counsel have the authority to swear people in and issue subpoenas. They can also take and use depositions, which are recorded testimonies, according to specific rules set by the board.

The State Bar Court or the chief trial counsel, or their designee, may administer oaths and issue any subpoena pursuant to Section 6049.

Depositions may be taken and used as provided in the rules of procedure adopted by the board pursuant to this chapter.

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Section § 6053

If there's an investigation or court case where a lawyer's mental or physical health is important, the State Bar can require the lawyer to be examined by doctors or psychiatrists. The results of these examinations can be used in the investigation and shared with both the lawyer and the State Bar.

Whenever in an investigation or proceeding provided for or authorized by this chapter, the mental or physical condition of the licensee of the State Bar is a material issue, the board or the committee having jurisdiction may order the licensee to be examined by one or more physicians or psychiatrists designated by it. The reports of such persons shall be made available to the licensee and the State Bar and may be received in evidence in such investigation or proceeding.

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Section § 6054

This law requires that state and local agencies, including law enforcement and courts, assist the State Bar of California by providing necessary criminal history information to help with the admission, discipline, or reinstatement of attorneys. Applicants or current licensees may need to submit fingerprints for background checks through the Department of Justice and the FBI, to confirm identity and check for criminal records. The State Bar uses this information to assess a person's suitability for practicing law. If licensees don't comply with fingerprinting requirements, they might be categorized as inactive until they do. The State Bar needs to inform the Department of Justice about changes in licensee status or admission denials within 30 days, and the DOJ retains fingerprints to notify the Bar of any future criminal arrests.

(a) State and local law enforcement and licensing bodies and departments, officers and employees thereof, and officials and attachés of the courts of this state shall cooperate with and give reasonable assistance and information, including the providing of state summary criminal history information and local summary criminal history information, to the State Bar of California or any authorized representative thereof, in connection with any investigation or proceeding within the jurisdiction of the State Bar of California, regarding the admission to the practice of law or discipline of attorneys or their reinstatement to the practice of law.

(b) The State Bar of California shall require that an applicant for admission or reinstatement to the practice of law in California, or may require a licensee, to submit or resubmit fingerprints to the Department of Justice and to the Federal Bureau of Investigation in order to establish the identity of the applicant and in order to determine whether the applicant or licensee has a record of criminal conviction in this state or in other states, including through a national criminal history check.

(c)

(1) Pursuant to subdivision (u) of Section 11105 of the Penal Code, the State Bar shall submit to the Department of Justice fingerprint images and related information required by the Department of Justice for all persons applying for admission to the State Bar of California for all applicants for reinstatement, and for all active and inactive licensees of the State Bar who are seeking to change their license status from inactive to active or whose fingerprints have not otherwise been submitted to the Department of Justice for the purposes described in this section. The Department of Justice shall provide a state or federal level response pursuant to subdivision (p) of Section 11105 of the Penal Code.

(2) As used in this subdivision, “applicant for reinstatement” means individuals initiating reinstatement proceedings with the State Bar after resignation with or without charges pending and after disbarment.

(d) The State Bar may use the information obtained from the Department of Justice and the Federal Bureau of Investigation as a result of the fingerprinting of an applicant or licensee, and the State Bar’s use of that information shall be limited to the official use of the State Bar in establishing the identity of the applicant and in determining the character and fitness of the applicant for admission or reinstatement, and in discovering prior and subsequent criminal arrests of an applicant, licensee, or applicant for reinstatement. The State Bar shall notify the Department of Justice about individuals who are no longer licensees and applicants who are denied admission to the State Bar within 30 days of any change in status of a licensee or denial of admission. All fingerprint records of applicants admitted or licensees reinstated, or provided by a licensee, shall be retained thereafter by the Department of Justice for the limited purpose of criminal arrest notification to the State Bar.

(e) If required to be fingerprinted pursuant to this section, a licensee of the State Bar who fails to be fingerprinted may be enrolled as an inactive licensee pursuant to rules adopted by the board of trustees.

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