STATE BAR DEFENSE
James B. Kamanski, Attorney at Law
10940 Wilshire Blvd., Suite 600
Los Angeles, CA 90024
(424) 901-8011 (424 is West L.A.'s newest area code)
(424) 901-8012 fax
james@jbeklaw.com
State Bar Defense
10940 Wilshire Blvd., Suite 600
Los Angeles, CA 90024
(424) 901-8011 (424 is West L.A.'s newest area code)
(424) 901-8012 fax
james@jbeklaw.com
State Bar Defense
DISCLAIMER: The following content is not intended to be legal advice to the reader.
If you have clicked on this link, you have probably received a letter from the Office of Chief Trial Counsel
for the State Bar advising you of an investigation regarding your alleged misconduct, or that charges
are being filed against you. What should you do?
First Things First
Do not panic. Often an investigation dies on the vine after the State Bar investigator assigned to your
matter realizes that the complaint made against you is incomplete or inaccurate. How can you assist this
process of an early death? By cooperating. In fact, the State Bar disciplinary scheme provides that a
failure to cooperate by a Member in an investigation can, in and of itself, represent an aggravating
factor supporting a higher level of discipline. If you cooperate, yet an investigation still leads to the filing
of formal charges, you will have done nothing to hurt your position. All of your documents related to the
inquiry are discoverable once an action is filed anyway, and if you previously demonstrated a refusal or
indifference about furnishing documents when first requested, you will only make the situation worse.
The only caveat is that you must take into consideration whether you will assert any privileges, including
the 5th Amendment. And, you should ensure that all communications are done in writing.
Reacting to Charges Against You
If disciplinary charges are filed against you, you should respond immediately. Unfortunately, a common
reaction by many Members is to engage in avoidant behavior. The sight of letters from the Bar, the
sounds of voice mails from the Bar, and the thought of a State Bar disciplinary action understandably
can generate uncertainty and anxiety which, in turn, can lead to an avoidant attitude. Often a Member
will ignore the Bar hoping the problem will simply “go away.” Unfortunately it will not. And these
emotions and behavior, no matter how normal and justified, can be interpreted by the Bar as an attempt
to avoid accountability, and the avoidance will be noted as a failure to cooperate and as an aggravating
factor supporting a higher level of discipline. As such, it is to your benefit to be proactive about any
State Bar disciplinary charges filed against you, and to respond immediately and professionally.
The Path Ahead
What happens once an action is filed? If a disciplinary action is initiated, your matter will follow a
procedural path resembling a hybrid of the rules governing civil and criminal proceedings in the
California Superior Courts. There are, however, many important differences. For example, most of the
rules of procedure are contained in the Rules of Practice of the State Bar Court and the Rules of
Procedure of the State Bar of California. And although State Bar proceedings are considered
administrative in nature, it is helpful to conceptualize the entire proceeding as accusatory, like a criminal
proceeding. The exception is that you, the “respondent,” cannot automatically hide behind the 5th
Amendment, and cannot sit completely idle while the prosecution builds a case around you. Again, you
must cooperate. But, once an action is filed the law regards the proceedings as adversarial, and you
are free to vigorously defend yourself within the procedural rules.
One of the tools you will have at your disposal is the California Discovery Act, which allows you to obtain
documents and evidence from not only the Bar, but also, importantly, third parties through the power of
the subpoena. This includes the ability to depose persons involved in the matter and obtain their
documents, whether it be your former client, business associate, law partner, or other Member with
whom you compete for clients (depending upon the circumstances). Another tool at your disposal is the
standard of proof. All elements of any offense charged must be proven by “clear and convincing”
evidence. Though not has high as the “beyond a reasonable doubt” standard used in criminal
proceedings, the clear and convincing evidentiary standard is much higher than a preponderance of
evidence, and can allow you to clear your name when the evidence against you is spotty, substantially
disputed, or haphazardly presented.
Resolution Without Trial
Can a Member settle with the State Bar? Yes, and it is often called a “settlement,” though it is more
accurate to say you are agreeing to submit to discipline. Remember, State Bar proceedings, though
administrative, are akin to criminal proceedings. The Bar does not want your money (though sometimes
it does - see below). The Bar wants to either protect the public by keeping you from representing other
prospective clients, or more often wants to try and rehabilitate and reeducate you. Accordingly, the
menu of options for discipline ranges from private or public reproval, to temporary or permanent
disbarment. Sometimes a simple admonition or "warning" letter is issued. And thrown into the mix are a
number of other options, such as taking various ethics classes and exams, and reporting your progress
to a progress manager affiliated with the Bar. If your matter involves substance abuse issues, you may
be required to participate in programs designed to educate and abate any substance abuse problems
you may have. And, again, the State Bar will keep tabs on certain enumerated factors which either
“mitigate” or “aggravate” the level of discipline it ultimately seeks. As has been emphasized,
cooperation at all stages of the proceedings is the first and most obvious factor the State Bar takes into
account, though there are a number of other factors the Bar considers which are enumerated by
statute.
One important concept in the Bar’s disciplinary scheme is the notion of “probation.” The Bar uses
different terms and phrases to describe probation, but the concept is the same as in criminal matters.
Following a settlement or finding of a violation by the judge, a Member is typically subject to a specified
type of discipline, but then imposition of the discipline is held in abeyance for a probationary period. If
you meet all of the conditions of probation, the discipline is eventually terminated or deemed satisfied.
The terms of probation can, by themselves, constitute discipline and may be cumbersome or time
consuming. But, they are usually much more tolerable than submitting to the discipline that is being held
in abeyance pending completion of probation. For example, you may be required to take ethics classes
and pass ethics exams, and then pay costs associated with the prosecution of your case (the money the
Bar sometimes wants), all during a period of time of probation where, should you fail to comply, a much
more onerous level of discipline will be imposed upon you.
Trial of Disciplinary Charges
What happens at trial? Like any case, you can challenge the prosecution, either because the Office of
Chief Trial Counsel's case is weak, or the level of discipline being demanded exceeds what the judge will
likely give you even if you lose at trial. Often a trial makes sense because, unless the prosecution is
offering a favorable settlement, you can often pitch your argument for a particular level of discipline to
the judge with more success. And, more often than you might think, you can win your case at trial, clear
your name, and avoid any discipline.
If you do go to trial, your case will be heard with a single judge. The courtrooms at the State Bar in
downtown Los Angeles are clean, quiet, and modern. Usually the only persons in the courtroom are
you, your attorney, the prosecutor, the judge, and any witness on the stand. The judge will encourage
much of the case to be presented with documentary evidence if possible, and will encourage the
attorneys to stipulate to the admissibility of most items of evidence. Again though, this is your time to
vigorously defend yourself, and evidentiary matters that are not trivial should be challenged, and
compelling evidence supporting your position, such as the testimony of live witnesses, should be
gathered and fully presented.
If you win at trial, outstanding! You can congratulate yourself and get back to practicing law. If you lose,
you are still entitled to a hearing regarding the appropriate level of discipline. This hearing does not
deal with the issue of “whether” you did something wrong, but rather with the question of “how much”
discipline does the judge impose because it was proven you did something wrong. Here, you are free to
present as many factors as possible which tend to justify a lesser amount of discipline, and you may do
so through whatever witnesses or other items of proof are available to you.
Hiring a Lawyer
Should you hire a lawyer? Unless it appears obvious to you that the case will die on the vine once you
clarify certain matters, as in the case with a patently unstable or dishonest former client, it is advisable to
hire a lawyer. Though you are not being charged with a crime, your license and professional reputation
are at stake when a State Bar matter erupts. Having yourself as your lawyer can also lead to clouded
judgment and poor decision making, which can make your situation worse as your case progresses. In
fact, many Members attempt to represent themselves to save costs early in a State Bar proceeding, but
then must enlist an attorney later and at greater expense after realizing matters have been made worse
by representing themselves.
Please contact Jim Kamanski if you have additional questions about representation in your State Bar
disciplinary proceedings. All initial consultations are without charge.
DISCLAIMER: The content above is not intended to be legal advice to the reader.
If you have clicked on this link, you have probably received a letter from the Office of Chief Trial Counsel
for the State Bar advising you of an investigation regarding your alleged misconduct, or that charges
are being filed against you. What should you do?
First Things First
Do not panic. Often an investigation dies on the vine after the State Bar investigator assigned to your
matter realizes that the complaint made against you is incomplete or inaccurate. How can you assist this
process of an early death? By cooperating. In fact, the State Bar disciplinary scheme provides that a
failure to cooperate by a Member in an investigation can, in and of itself, represent an aggravating
factor supporting a higher level of discipline. If you cooperate, yet an investigation still leads to the filing
of formal charges, you will have done nothing to hurt your position. All of your documents related to the
inquiry are discoverable once an action is filed anyway, and if you previously demonstrated a refusal or
indifference about furnishing documents when first requested, you will only make the situation worse.
The only caveat is that you must take into consideration whether you will assert any privileges, including
the 5th Amendment. And, you should ensure that all communications are done in writing.
Reacting to Charges Against You
If disciplinary charges are filed against you, you should respond immediately. Unfortunately, a common
reaction by many Members is to engage in avoidant behavior. The sight of letters from the Bar, the
sounds of voice mails from the Bar, and the thought of a State Bar disciplinary action understandably
can generate uncertainty and anxiety which, in turn, can lead to an avoidant attitude. Often a Member
will ignore the Bar hoping the problem will simply “go away.” Unfortunately it will not. And these
emotions and behavior, no matter how normal and justified, can be interpreted by the Bar as an attempt
to avoid accountability, and the avoidance will be noted as a failure to cooperate and as an aggravating
factor supporting a higher level of discipline. As such, it is to your benefit to be proactive about any
State Bar disciplinary charges filed against you, and to respond immediately and professionally.
The Path Ahead
What happens once an action is filed? If a disciplinary action is initiated, your matter will follow a
procedural path resembling a hybrid of the rules governing civil and criminal proceedings in the
California Superior Courts. There are, however, many important differences. For example, most of the
rules of procedure are contained in the Rules of Practice of the State Bar Court and the Rules of
Procedure of the State Bar of California. And although State Bar proceedings are considered
administrative in nature, it is helpful to conceptualize the entire proceeding as accusatory, like a criminal
proceeding. The exception is that you, the “respondent,” cannot automatically hide behind the 5th
Amendment, and cannot sit completely idle while the prosecution builds a case around you. Again, you
must cooperate. But, once an action is filed the law regards the proceedings as adversarial, and you
are free to vigorously defend yourself within the procedural rules.
One of the tools you will have at your disposal is the California Discovery Act, which allows you to obtain
documents and evidence from not only the Bar, but also, importantly, third parties through the power of
the subpoena. This includes the ability to depose persons involved in the matter and obtain their
documents, whether it be your former client, business associate, law partner, or other Member with
whom you compete for clients (depending upon the circumstances). Another tool at your disposal is the
standard of proof. All elements of any offense charged must be proven by “clear and convincing”
evidence. Though not has high as the “beyond a reasonable doubt” standard used in criminal
proceedings, the clear and convincing evidentiary standard is much higher than a preponderance of
evidence, and can allow you to clear your name when the evidence against you is spotty, substantially
disputed, or haphazardly presented.
Resolution Without Trial
Can a Member settle with the State Bar? Yes, and it is often called a “settlement,” though it is more
accurate to say you are agreeing to submit to discipline. Remember, State Bar proceedings, though
administrative, are akin to criminal proceedings. The Bar does not want your money (though sometimes
it does - see below). The Bar wants to either protect the public by keeping you from representing other
prospective clients, or more often wants to try and rehabilitate and reeducate you. Accordingly, the
menu of options for discipline ranges from private or public reproval, to temporary or permanent
disbarment. Sometimes a simple admonition or "warning" letter is issued. And thrown into the mix are a
number of other options, such as taking various ethics classes and exams, and reporting your progress
to a progress manager affiliated with the Bar. If your matter involves substance abuse issues, you may
be required to participate in programs designed to educate and abate any substance abuse problems
you may have. And, again, the State Bar will keep tabs on certain enumerated factors which either
“mitigate” or “aggravate” the level of discipline it ultimately seeks. As has been emphasized,
cooperation at all stages of the proceedings is the first and most obvious factor the State Bar takes into
account, though there are a number of other factors the Bar considers which are enumerated by
statute.
One important concept in the Bar’s disciplinary scheme is the notion of “probation.” The Bar uses
different terms and phrases to describe probation, but the concept is the same as in criminal matters.
Following a settlement or finding of a violation by the judge, a Member is typically subject to a specified
type of discipline, but then imposition of the discipline is held in abeyance for a probationary period. If
you meet all of the conditions of probation, the discipline is eventually terminated or deemed satisfied.
The terms of probation can, by themselves, constitute discipline and may be cumbersome or time
consuming. But, they are usually much more tolerable than submitting to the discipline that is being held
in abeyance pending completion of probation. For example, you may be required to take ethics classes
and pass ethics exams, and then pay costs associated with the prosecution of your case (the money the
Bar sometimes wants), all during a period of time of probation where, should you fail to comply, a much
more onerous level of discipline will be imposed upon you.
Trial of Disciplinary Charges
What happens at trial? Like any case, you can challenge the prosecution, either because the Office of
Chief Trial Counsel's case is weak, or the level of discipline being demanded exceeds what the judge will
likely give you even if you lose at trial. Often a trial makes sense because, unless the prosecution is
offering a favorable settlement, you can often pitch your argument for a particular level of discipline to
the judge with more success. And, more often than you might think, you can win your case at trial, clear
your name, and avoid any discipline.
If you do go to trial, your case will be heard with a single judge. The courtrooms at the State Bar in
downtown Los Angeles are clean, quiet, and modern. Usually the only persons in the courtroom are
you, your attorney, the prosecutor, the judge, and any witness on the stand. The judge will encourage
much of the case to be presented with documentary evidence if possible, and will encourage the
attorneys to stipulate to the admissibility of most items of evidence. Again though, this is your time to
vigorously defend yourself, and evidentiary matters that are not trivial should be challenged, and
compelling evidence supporting your position, such as the testimony of live witnesses, should be
gathered and fully presented.
If you win at trial, outstanding! You can congratulate yourself and get back to practicing law. If you lose,
you are still entitled to a hearing regarding the appropriate level of discipline. This hearing does not
deal with the issue of “whether” you did something wrong, but rather with the question of “how much”
discipline does the judge impose because it was proven you did something wrong. Here, you are free to
present as many factors as possible which tend to justify a lesser amount of discipline, and you may do
so through whatever witnesses or other items of proof are available to you.
Hiring a Lawyer
Should you hire a lawyer? Unless it appears obvious to you that the case will die on the vine once you
clarify certain matters, as in the case with a patently unstable or dishonest former client, it is advisable to
hire a lawyer. Though you are not being charged with a crime, your license and professional reputation
are at stake when a State Bar matter erupts. Having yourself as your lawyer can also lead to clouded
judgment and poor decision making, which can make your situation worse as your case progresses. In
fact, many Members attempt to represent themselves to save costs early in a State Bar proceeding, but
then must enlist an attorney later and at greater expense after realizing matters have been made worse
by representing themselves.
Please contact Jim Kamanski if you have additional questions about representation in your State Bar
disciplinary proceedings. All initial consultations are without charge.
DISCLAIMER: The content above is not intended to be legal advice to the reader.
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