How to level the playing field at the prefiling settlement conference

Potential clients often ask whether or not they really need specialized discipline defense counsel when they learn they are a target of an investigation by the State Bar's Office of Chief Trial Counsel, or OCTC. Although many choose to represent themselves, I always advise attorneys to retain specialized counsel: your license to practice law and thus your livelihood may be on the line and the procedures followed by OCTC and the State Bar Court are different than those in civil or criminal courts. In addition, given changes in OCTC policies and rules of procedure relating to the prefiling settlement conference, a target attorney needs to do everything he or she can to level the playing field.

First, let's review the life of a State Bar disciplinary matter using the most common scenario: a client complaint. Upon receipt of a complaint, an attorney in OCTC's Intake Department reviews the allegations and determines whether the matter can be closed outright, resolved quickly or requires investigation. If the complaint requires investigation, it is moved from "Intake" to "Investigation," and the complaint is assigned to an investigator and legal advisor team. While the complainant is notified of this move, the attorney is not. In fact, the target attorney often is unaware that a complaint has been filed let alone that the attorney is being investigated by OCTC.

The investigator and legal adviser interview the complainant and obtain basic documents. Unless the matter closes quickly, the attorney eventually receives notice of the matter via an OCTC inquiry. The inquiry is a due process requirement and often occurs months after the complaint was made. In the inquiry, OCTC advises the attorney that a complaint has been made, describes (one hopes in some detail) the allegations and requests the attorney's response to the allegations. The letter also often requests documents. The rules require that OCTC give  the attorney two weeks to respond.

The inquiry is often the first time the attorney becomes aware of a complaint and triggers the question: Do I need counsel? Some attorneys believe they can handle the investigation themselves, and oftentimes they do it successfully. However, if the matter moves to the next stage, "Prefiling" they are at a serious disadvantage if they do not already have counsel in place.

The Prefiling stage is the period, roughly two months, after the investigation has concluded and OCTC's trial counsel reviews the evidence, prepares the charges and obtains approval for a proposed level of discipline. OCTC used to advise attorneys that their investigations were moving to Prefiling, so the attorney had a two-month period to familiarize themselves with the rules or obtain counsel. OCTC has stopped giving that notice.

Now, attorneys receive notice at the end of the Prefiling stage that OCTC is ready to file charges. You read that correctly; the attorney believes the investigation is still ongoing meanwhile the ink is drying on the charging document, known as the Notice of Disciplinary Charges or NDC. Before filing the NDC, OCTC is required to offer the attorney an opportunity to settle their discipline case. This in itself is a change because they used to offer an Early Neutral Evaluation Conference or ENEC. In recognition of the fact that OCTC does not negotiate discipline, they instead offered an opportunity to appear before a State Bar Court judge to get his or her thoughts on the charges and proposed level of discipline. 

The new rules, effective July 1, 2024, require OCTC to provide a "Notice of Prefiling Settlement Conference," or PSC, advising attorneys that the investigation is concluded and charges are about to be filed. The target attorney may obtain informal discovery (absolutely request the investigation file!) and has just ten calendar days to request a PSC which in turn will be held within 15 days. Once scheduled, a PSC statement must be lodged with the State Bar Court five days before the PSC. If you are doing the math, that means that a self-represented attorney who decides to get counsel has about 20 days to find and retain counsel and get them familiar with the case sufficiently to have a PSC Statement drafted and timely lodged.

To make matters more challenging, OCTC is not required to provide the attorney with a copy of its NDC or even a list of the charges. In my recent cases, OCTC has refused to provide this information. While OCTC is required to provide the PSC judge with a copy of the NDC in its PSC Statement, it is not required to share the PSC Statement with the target attorney. Again, in my recent cases, OCTC has not shared their PSC Statement. There is a new meet and confer requirement that should be the opportunity for the attorney to learn the actual charges and proposed level of discipline, however, that meet and confer can be held the day before or the morning of the PSC.

Given that the attorney is going into the PSC blind, it is difficult to meaningfully engage in settlement discussions. OCTC cannot truly negotiate discipline. While OCTC has the absolute discretion to bring or not bring charges, its level of discipline is merely a request based upon predetermined Standards. It is the State Bar Court that ultimately decides the appropriate level of discipline in any given case. Further, if the level of discipline involves any actual suspension or a disbarment, that discipline order can only come from the California Supreme Court.

Because OCTC cannot negotiate discipline, issues at the PSC often revolve around mistakes in the charges, holes in OCTC's evidence, or the existence of mitigation. One component of mitigation is character letters, in the form of "extraordinary good character attested to by a wide range of references in the legal and general communities, who are aware of the full extent of the misconduct." (Standards 1.6(f). If the attorney is not aware of the charges and only has 25 days to obtain character letters then the availability of this mitigation is greatly diminished. Attorneys are often left with a "take it or leave" settlement offer knowing that, if the PSC does not result in a settlement, then OCTC is free to file its NDC, the matter becomes public, and the attorney is faced with the publicity and expense of a discipline trial.

Once again, if you are unfortunate enough to receive a letter of inquiry notifying you that OCTC is investigating a complaint, seriously consider retaining dedicated discipline defense counsel. Your license and livelihood may be at risk, so do what you can to level the playing field.