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The Professor Nedley Series

The Discipline Page

            In the olden days Professor Nedley chaired the State Bar's Committee on Regulation, Admissions & Discipline.  In those days and to this day a disproportionately high number of family law attorney's are caught in the maw of the discipline process.  The reasons are not difficult to discern.  90% of the lawyers are from small firms that lack the "big firm" support system and 90% of the clientele are going through a difficult process which tends to make people very angry at "someone".  There's a strong chance that that someone will be their lawyer.  This is also true of the Judiciary.  There is no higher area for trouble.  The Family Law Judiciary handles more cases per judge than any other type of judge in the system.  There are more self-represented litigants per square foot than anywhere else in the courthouse and there is vastly less support than anywhere in the courthouse.

The first step is to learn how we get into trouble in the first place;

For Lawyers:

 The Professor is listing the "Top Ten" (with deference to David Letterman, he's never done these particular top  "10") instances that create discipline for lawyers as identified in opened investigations in a given year.

10.   (380)*   Representing conflicting interests or taking position adverse to former/current client. (Rule 5-102, 3-310)

9.     (438)   Failure to return unearned fee after withdrawal, often involved with claims of over-charging. (Rule 2-111 (A) (3)        3-700 (1) (2) )

8.    (536)   Improperly withdrawing from employment, i.e., without notice to client or court, timing of withdrawal, etc.          (Rule 2-111, Rule 3-700)

7.   (563)   Attorney misappropriated client monies or other property coming into an attorney's possession, etc.  (Rule 8-101 (B) (4), 4-100 (B) (4) )

6.    (590)   Failure to promptly return file to client or new attorney. (Rule 3-700 (D) (1) )

5.    (778)   Acts of moral turpitude including dishonesty, untruthful means, lack of candor, etc. (B&P 6106)

4.    (1,193)   Failure to honor liens (medical, expert and other attorney).  (B&P 6103)

3.    (1,262   Failure to account for client funds and failure to promptly pay out of client funds.  (Rule 8-101 (B), 4-100)

2.    (2,468)   Failure to communicate, keep client informed of status.  (Rule 3-100, 3-500 & B&P 6068 (m) )

And the number one complaint is....

1.    (3,578)   Failure to perform, delay in performance, abandonment of case.  (Rule 3-100)

( *Indicates # of complaints in each category)

 

What to Do? Always have someone return the phone calls with some useful or least friendly information.  Always return a file when your services are concluded.  (You can keep a duplicate) Never deposit a retainer in your own account - it's the client's money until you earn it and bill it.  Set dates in the future on every single case to trigger movement on your part. (court appearances, reviews, client meetings etc.).  Never, ever be without a trust account and that should be the very first place the money goes.  Don't ever shortchange your client on fee refunds - is it really worth it to refuse to give the client a refund if they feel the money wasn't earned - even if every dime of it was damn well earned.  Never do anything that you couldn't explain to your MOM.

Click Here to Read What Scott Drexel, the Chief Trial Counsel of the State Bar of California, Has to Say: 

 

For Judges: 

There are three ways to get into trouble.  First, is trouble with the Commission on Judicial Performance (CJP), second, there are always those "pesky" appeals and, of course, there is the "stopper" of you paycheck - "matters under submission"? for more than 90 days.

1. CJP - In 2006 there were 1610 judicial positions.  S.Ct. - 7, DCA - 105, and 1498 fine, hardworking trial judges.  There were 1019 complaints about active and retired judges naming over 1300 different judges.  That's darn near one complaint for everyone of the trial judges, which would seem to mean that we're all out there working and sharing the complaint load.  There aren't actually any complaints about appellate judges because they don't actually really ever make any decisions and it's usually way over a year before they do anything and by then the litigants have forgotten what they were fighting over.

Here's the way they break down;

This is roughly proportionate with the actual numeric assignments of judges.

2.  APPEALS - In California in a given year there are about 9 million filings per year with about 2000 judicial positions and a mere 100,000 appellate cases filed.  So the odds of an appeal are much higher than the judges chances of getting sent to the state's disciplinary board at any given time.   Surprisingly Family Law's chance of being appealed are proportionate with everyone else's chances.  Of the 99,700 appellate cases filed in the 2005-2006 fiscal year, 14,500 were family law cases or about 14%

3.  MATTERS UNDER SUBMISSION -

California Constitution, article VI, section 19,

Provides that a judge may not receive a salary “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” The 90-day period is considered a “reasonable time within which to expect a trial judge to carry out the basic responsibility of a judge to decide cases.”

2008 Rules of Court § 10.603 (c)(3)

The presiding judge must monitor the number of causes under submission to ensure that no cause under submission remains undecided for longer than 90 days. The presiding judge must:

(A)Require each judge to report all causes under submission for more than 30 days and designate whether it has been under submission for 30 through 60 days, 61 through 90 days, or over 90 days;

(B)Compile a list of all causes under submission and must include the name of each judge, with a list of causes under submission before that judge, including the length of time each cause has been under submission;

(C)The P.J. must circulate a monthly copy  of that list;

(D)Contact  each judge and tell them to get off the dime;

(E)Provide assistance to a judge who has a cause under submission for over 60 days.

AVOIDING THE PROBLEMS

The variety of different behaviors that can catch a good judge off guard are too numerous to mention in a website and besides there is a marvelous book that covers the topic in minute and thorough detail.  Needless to say the same behavior that makes people want to appeal a judge are closely related to the behavior that gets them reported to the  CJP.  Arrogance, Rudeness and Lack of Preparedness.

The decision making process should always be open and above-board.  It is not often that you are appealed without reason, therefore  explain your reasons in detail and on the record.  Don't be afraid to solicit questions, assuming that you know the answers.  The more important the matter is - to the parties, not to you - the more you put on the record.  If you're MAD - get off the bench and cool down before making a decision that'll be on the record forever.

It may surprise no one to learn that by far and away that the most cases under submission over the 30-day time limit for reporting are family law cases.  Civil calendars are supported with research staff as are criminal calendars.  Civil IC judges have research attorneys.  Criminal law and motion calendars have research attorneys.  Family Law in downtown San Diego essentially has one research attorney for 7 judges and 4 commissioners.  Family Law judges essentially have no calendar time for the preparation of cases, because they have calendars scheduled for each half-day period of the week.  NO OTHER JUDGE IN THE SYSTEM HAS THE SAME SETUP WITHOUT ANY REAL ASSISTANCE.

A smart judge should, under the circumstances, NEVER, EVER take a matter under submission.  There will, of course, always be situations where the matter is too complex or too detailed to shoot from the bench.  If you need to time to consider the case and make up your decision CONTINUE THE MATTER TO A DATE IN THE FUTURE.  That way you've bought yourself time to think and yet the matter is not considered to be SUBMITTED FOR DECISION!!!