The Rules of Procedure of the State Bar, Title IV, Standards for Attorney Sanctions for Professional Misconduct apply a policy of progressive discipline, generally requiring that each successive disciplinary proceeding in which culpability is found should result in more severe sanctions than the last. In response to a recommendation from the Ad Hoc Commission on the Discipline System, the Board directed staff to consider modifications to the standards to permit the greater exercise of judicial discretion in determining whether to impose progressive discipline. A State Bar Court working group, with input from stakeholders, developed the proposed amendments to Standard 1.8 to give State Bar Court judges greater discretion with regard to the imposition of progressive discipline.
DISCUSSION/ PROPOSAL
The Rules of Procedure of the State Bar, Title IV, Standards for Attorney Sanctions for Professional Misconduct, Standard 1.8 states, “If a lawyer has a single prior record of discipline, the sanction must be greater than the previously imposed sanction unless the prior discipline was so remote in time and the previous misconduct was not serious enough that imposing greater discipline would be manifestly unjust.” The Ad Hoc Commission’s Progressive Discipline Working Group explored modifications to the discipline standards as a means of preventing the perpetuation of historical disparities in attorney discipline. Because prior discipline may reflect disparities in treatment, inflexible requirements to apply more severe sanctions to those with prior disciplinary histories can exacerbate those patterns.
The existing language of Standard 1.8 limits the discretion of the State Bar Court in several ways: First, it requires that progressive discipline “must” be imposed unless specific factors apply. Second, for progressive discipline not to be required, the prior misconduct must be both remote in time and not serious. Finally, the standard does not allow consideration of the seriousness of the current misconduct.
The proposed changes will allow greater flexibility while ensuring transparency by requiring that when progressive discipline is not imposed, the court must state its reasons. The changes will: