Can Counsel’s Argument Be Disciplinable Under California’s New Anti-Discrimination Rule?

Malek Media Group v. AXQG Corporation, Second App. Dist., Div. 3, case no. B299743, filed 12/16/20.

Plaintiff and defendant formed Foxtail LLC to produce a film. The relationship dissolved in acrimony, including allegations that MMG’s principal Malek had sent sexually explicit messages to a prospective Foxtail employee. AXQG filed a petition with JAMS alleging for breach of fiduciary duty, fraud, and breach of the Foxtail agreement. MMG and its principal Malek counterclaimed for breach of contract, breach of fiduciary duty, conversion, fraudulent concealment, and declaratory relief. The arbitrator found for AXQG and denied all of MMG/Malek’s claims. Predictably, AXQG petitioned to confirm the award and MMG petitioned to vacate it. At that point, as the Court of Appeal relates the tale:

Malek “commenced a deep-dive, internet search into [the arbitrator’s] background.” He found the GLAAD [Gay and Lesbian Alliance Against Defamation] organization website which stated that the arbitrator had been a founding board member of GLAAD and its chief counsel decades ago. MMG argued that the arbitrator failed to disclose his background and “his self-proclaimed status as a gender, social, female and LBGTQ activist and icon, while facing a matter grounded in gender and social issues, particularly sexual harassment.” Specifically, MMG asserted that the arbitrator was obligated to disclose his prior affiliation with GLAAD once made aware of Malek’s Catholic background. MMG claimed that GLAAD was at odds with the Catholic Church after the passage of Proposition 8, which banned same-sex marriage in California. Thus, MMG asserted that GLAAD and the Catholic Church were antagonistic to each other and, by extension, the arbitrator against Malek, casting doubt on the arbitrator’s impartiality.

The trial court confirmed the award and the appeal followed. In support of the appeal, appellant MMG filed two requests for judicial notice with the Court of Appeal. Among other things, the appellant asked for judicial notice of “the #MeToo movement and the phrase a woman alleging sexual harassment must be believed” that was denied, the Court finding that “MMG failed to provide sufficient evidence or explanation that the #MeToo movement and the phrase a woman alleging sexual harassment must be believed are facts of such generalized knowledge that they cannot reasonably be the subject of dispute.” The Court also declined to take judicial notice of press clippings from the GLAAD website a twitter posts from the arbitrator’s purporting to show a connection between the #MeToo movement and GLAAD, and a connection between GLAAD and the arbitrator demonstrating that the arbitrator’s perspective on “white privilege, men, religion, abuse of women and anything that does not comport with [the arbitrator’s]social justice view of the world…..and the arbitrator’s inability to act impartially in a case involving a Catholic white male accused of sending sexually explicit texts to a prospective employee.”

The Court of Appeal found that the arbitrator was not required to disclose his relationship with GLAAD. Arbitrators must make disclosure of “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” Code Civ. Proc. section 1281.9, including grounds specified for disqualification of judges under section 170.2 and matters subject to the ethical standards for contractual arbitrators adopted in the California Rules of Court. The test is on objective one; the “reasonable person under this objective test “‘is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful observer.”’[Citations.]‘[T]he partisan litigant emotionally involved in the controversy underlying the lawsuit is not the disinterested objective observer whose doubts concerning the judge’s impartiality provide the governing standard.’”

There were many issues in arbitration besides the alleged sexual harassment. The Court of Appeal characterized MMG arguments as “ridiculous” because “MMG cannot show that the arbitration had anything to do with LGBTQ issues, GLAAD, religion, or the Catholic Church.”

AXQG moved to sanction MMG and its counsel in the amount of $56,0005 for filing a frivolous appeal. Sanctions may be imposed for frivolous appeals where the appeal was prosecuted for an improper motive or the appeal indisputably has no merit.(Code Civ. Pro. section 907; Cal. Rule of Court 8.276(a)(1).) To determine whether an appeal is frivolous, “we apply both a subjective standard, examining the motives of appellant and its counsel, and an objective standard, analyzing the merits of the appeal. In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649–650.” The Court of Appeal readily concluded that MMG’s appeal was both subjectively and objectively frivolous, lacking legal merit and “prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment.” The lack of merit is evidence that it was appealed for an improper motive. “MMG adopted a war-like mentality toward AXQG, its counsel, and anyone else involved with this case. The record is replete with personal attacks on Gou and AXQG’s counsel, as well as numerous unsubstantiated claims that everyone who was purportedly against Malek and MMG was engaged in an elaborate conspiracy to destroy him.”

Moreover, the Court found both MMG and its counsel “equally culpable for pursuing this frivolous and bigotry-infused appeal.” It ordered MMG and it’s counsel to pay AXQG $46,000, sanctioned MMG and its counsel $10,000 payable to the Court, ordered counsel to report the sanction (independently reportable under Bus. & Prof. Code section 6068(o)(4) and itself reported counsel to the State Bar under Bus. & Prof. section 6086.7.

California Rule of Professional Conduct 3.1 is the obvious point of departure. It’s requirements parallel the inquiry described in Flaherty: “(a) A lawyer shall not: (1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person…” But discipline prosecutors are looking for cases to apply some of the “new” Rules, for instance new Rule of Professional Conduct 8.4.1, titled Prohibited Discrimination and Harrassment. Given the Court of Appeal’s description of a “bigotry laden appeal” can Rule 8.4.1(a) gain any traction?

Probably not. The first part of the rule offers a glimmer of possibility:

(a) In representing a client, or in terminating or refusing to accept the representation
of any client, a lawyer shall not: (1) unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic; or (2) unlawfully retaliate against persons.

But even if the lawyer’s conduct in pursuing this appeal is characterized as harassment or retaliation, it’s basis must be a protected characteristic, defined in the Rule itself in subsection (c), a very specific type of harassment or retaliation. AXQG, the target of the frivolous appeal, does not fall into the category.

(c) For purposes of this rule: (1) “protected characteristic” means race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived

To cap it off, section (f) of the Rule says it is not a violation of the Rule to represent someone accused of such conduct, and that providing advice or advocacy “as otherwise permitted under these Rules [e.g. Rule 3.1] does not violate the Rule.”

California’s Rule is not as broad as the Pennsylvania rule, based on Model Rule 8.4(g), whose enforcement was recently enjoined by a Federal judge. The Pennsylvania rule provided that it “is professional misconduct for a lawyer to: in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.”

Counsel’s conduct in Malek is might be within the reach of the ABA Model Rule 8.4(g), which may or may not be comforting to California lawyers contemplating the efficacy of our Rule 1.8.1.

ABA Blesses Remote Practice – Is California in?

The American Bar Association (ABA) has issued formal ethics opinion 495 “Lawyers Working Remotely.” A timely topic in the midst of the pandemic and an opinion that will offer some comfort to those who are currently living and practicing in a jurisdiction where they are not licensed. The digest concludes:

Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.

It sounds good as far as it goes. But can a lawyer rely on it? The opinion interprets the ABA Model Rules, not the law of any particular jurisdiction, as the opinion carefully points out. While the ABA Model Rules are the model for the ethical rules in every US state now – California, the last holdout, succumbed in November 2018 – every state has enacted its own version, some (like California) with very significant changes indeed.

The opinion bases much of its analysis on the text of Model Rule 5.5(a) and 5.5(b):

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

More good news is that California’s version of this part of 5.5 is virtually identical:

(a) A lawyer admitted to practice law in California shall not: (1) practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction; or (2) knowingly assist a person in the unauthorized practice of law in that jurisdiction. (b) A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.

The only significant change is the addition of the word “a resident office” to the prohibition on lawyers not admitted in California. And it is of significant interest because there are many lawyers living in California that are not admitted here but carrying on a “virtual” law practice for clients in other states where they are admitted. This was the case even before the pandemic.

Does “resident office” include the spare bedroom that you have outfitted as your home office? While it does not address the California rule, the Formal Opinion 495 is helpful (but not dispositive) in answering that question:

The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed. The Committee’s opinion is that, in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.

The opinion is consistent with the case law, which seems to emphasize a multi-factor test, with the location of the client as one of the most important factors, in deciding “where” the practice of law is taking place; see Barker, William T., Extrajurisdictional Practice by Lawyers. Available at SSRN:

There is no California authority finding that such “invisible” practice by “extrajurisdictional” lawyers not admitted in California violates Business and Professions Code section 6125 and 6126, where the prohibitions on unauthorized practice of law principally reside. Perhaps that is because it is invisible. But the deeper explanation is such practice does not tread on the fundamental nature of these prohibitions as protectionism – a way to keep out of state lawyers from poaching California clients. This protectionism has always been couched as necessary to protect the public from unqualified lawyers and the ABA opinion dutifully recites the shibboleth, which grows more hollow as technology conquers geography.

In the meantime, lawyers not admitted to practice in California are probably safe to virtually practice for clients in their licensed jurisdictions, so long as they remain “invisible”.

Roche v. Hyde, A SLAPP Saga Only 8% As Long As “War & Peace”

Tolstoy’s masterpiece “War and Peace” is 1,225 pages long. Roche v. Hyde (First Appellate Dist, Div. 4, case no. A150459, filed 6/30/20) is only 95 pages long. If you must while away the empty hours of summer reading only one really long story, which one would you choose?

Even a Cliff Notes version of Roche is probably too long for this blog so I will try to boil it down to the essentials with some help from the Court, which laments that “While the ultimate issue may be put simply, that is not so for the case as a whole.”

Chapter 1 The Sale of Winery and the Fight Over Non-Disclosure

In 2006, Ram’s Gate Winery, LLC (Ram’s Gate) purchased a Sonoma County winery from Dr.Joseph G. Roche (Roche) and his wife. Ram’s Gate later sued the Roches for breach of contract, fraud, and negligent nondisclosure based on claims they withheld seismic information about the property and made misstatements concerning the ability to build on an existing building pad. The protracted litigation ultimately ended with Ram’s Gate dismissing the action, Roche paying nothing to Ram’s Gate, and Ram’s Gate paying most but not all of Roche’s attorney fees.

Chapter 2 The Malicious Prosecution Action

Roche then brought a malicious prosecution suit against Ram’s Gate, two of its members, Michael John and Jeffrey O’Neill (collectively,Ram’s Gate or the Ram’s Gate defendants),along with their attorney, Thomas Hyde (collectively with Ram’s Gate, the defendants), alleging they withheld documents in discovery that would have proved they knew or should have known the seismic information they claimed was kept from them when they bought the property from Roche.

Chapter 3 The Inevitable Anti-SLAPP

The defendants filed special motions to strike the complaint as a strategic lawsuit against public participation(anti-SLAPP motions). Following denial of their anti-SLAPP motions, the Ram’s Gate defendants and Hyde separately appealed. Though they largely take a common position in these now consolidated appeals, Ram’s Gate and Hyde have appeared separately and have filed separate briefs, as they did in the trial court. Together, the defendants attack the denial of their anti-SLAPP motions from many angles—necessitating the extended discussion to follow—but at its core the single issue before us, put simply,is whether Roche made a sufficient showing that he was likely to succeed on the merits. We conclude he did and therefore affirm.

So far, the story doesn’t seem that interesting. SLAPP specialists will appreciate the detailed discussion of the SLAPP issues. But the ethics lawyer’s eye is caught by the Court’s self-admittedly “harsh” view of lawyer’s Hyde’s conduct, and how it affects Ram’s Gate”s advice of counsel defense:

The Ram’s Gate defendants do not contend on appeal that evidence of their malice was lacking, but Hyde does. The singular aggressiveness of his position, in our view, betrays its weakness.

Hyde is in the least credible position to make such a claim, since it was Hyde who discovered the Boudreau Report in the 2005 Due Diligence Binder before filing the underlying action. It was Hyde who, as the attorney representing Ram’s Gate, was responsible for undertaking a reasonable investigation into the facts before making irresponsible accusations in a pleading.

Rather than acknowledge the possibility of any misjudgment, Hyde doubles down. The four-and-a-half-year record of withholding discovery, we are told, is not his fault. Roche, Hyde argues, is to blame because Simon was negligent in not serving a subpoena seeking production of the JHP Land I client files on the correct party.And according to Hyde, the only reason the JHP Land I client files were eventually produced was due to Hardy’s “unethical” decision to produce materials from that file.He even claims to have no idea why Hardy failed to produce the Boudreau Report in the spring of 2012, as if his request of Hardy not to produce the client files of JHP Land I never happened.

Ultimately the sheer brazenness of the posture Hyde assumes may present credibility issues for the finder of fact to assess, but for now it adds nothing to the weight of his arguments. If anything, it detracts from them.

Whatever else happens here, the Ram’s Gate defendants seek to preserve their ability to argue “[t]here can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice as providing probable cause.” (Brinkley v. Appleby (1969) 276Cal.App.2d 244, 247.) They point out that “non-attorney defendants can usually demonstrate the existence of probable cause, and thus avoid liability, by evidence showing that they relied on the advice of counsel in good faith after full disclosure of the facts.”(Downey Venturev. LMI Ins.Co., supra,66Cal.App.4th at p.496, fn.24; see also Sosinsky v. Grant (1992) 6Cal.App.4th 1548, 1556 [“‘Probable cause may be established by the defendants in a malicious institution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.’”].) About this, all we need say is that issues concerning any advice-of-counsel defense by the Ram’s Gate defendants must be sorted out at trial.”

Emphasis added. California Rule of Professional Conduct 3.1 (former Rule 3-200) prescribes an ethical standard very similar to elements of malicious prosecution. Our Rule 3.4 “Fairness to Opposing Party and Counsel“, restating the substance of several former Rules, says that “a lawyer shall not…may not suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce.”

There was no sequel to “War and Peace.” But Roche v, Hyde will have one when the matter is tried on remand. We don’t know if it will be published but if so it may be a good read.

The Headline Says It All: “Contemporaneous Time Records Are the Best Evidence of Lawyers’ Hourly Work”


Taylor v. Traylor, Second App. Dist., Div.8, case no.B296537, filed 6/10/20.  Lawyer represented two plaintiffs on a police shooting case for approximately one month in 2016. When the plaintiffs fired him, they requested their file and Lawyer refused to provide it.  Lawyer later submitted notice of lien and two contradictory accountings of hours worked, one showing 130 hours of work for one client, and 180 hours for the other client.  Later, the settled for $7 million.  After that, the lawyer submitted a third accounting showing 200 hours spent on the case. The trial court found jurisdiction to adjudicate Traylor’s lien, granted the lien in the amount of $17,325.  Lawyer appealed, contending that he was owed $309,000.  The Court of Appeals found that the lawyer’s timekeeping records were so inconsistent that they could not be relied on.  Moreover, the fact that no work product was turned over when the lawyer’s representation supported an inference that no meaningful work had been done.  The Court stated its reasons for publishing the opinion:

We publish to underline that contemporaneous time records are the best evidence of lawyers’ hourly work. They are not indispensable, but they eclipse other proofs. Lawyers know this better than anyone. They might heed what they know

The Court of Appeal found no reason to overturn the $17,325 award, finding it “generous” and “nothing he should complain about.”  The Court also awarded Respondent’s their costs.

The opinion underlines the extreme importance of keeping time records in all cases, hourly cases and contingent fees, any case where the lawyer might need to prove the value of their work, that is, almost every case.  While not required, an accurate accounting of time is single best most tangible measure of that value and one of the factors that a fee arbitrator, a civil court judge or the State Bar will look at in evaluating not only the reasonable value of services, but also whether the fee is unconscionable under California Rule of Professional Conduct 1.5 (see 1.5(b)(12).  Yes, it is a chore but I will let the Court of Appeal have the last word on that:

Contemporaneous time records surely are a bother to keep. But people paying those bills are entitled to care about accuracy. At hundreds of dollars an hour, minutes here and minutes there add up. Accuracy is a professional virtue and a systemic concern. The public is entitled to confidence the justice system is just as careful about getting legal bills right as it is about getting everything else right. And exact clocks and timekeeping software have made it rather easy to be accurate—extremely accurate.


Smart Got: Disbarment for Felony Conviction for Forceful Assault Now Precedent

The Review Department of the State Bar Court has ordered publication of its April 10, 2020, opinion In the Matter of Smart, case no. 17-C-03687.  It upheld the hearing judge’s recommendation of disbarment.  Smart plead guilty to felony charges of violating Penal Code section 245(a)(4) (assault with force likely to produce great bodily injury), and Penal Code section 246.3(a) (discharging firearm with gross negligence. The hearing judge found the circumstances surrounding the crimes involved moral turpitude and that Smart had failed to demonstrate the compelling mitigation necessary to avoid disbarment under Standard 2.15(b).

Publication of Smart now makes it a citeable precedent in State Bar Court (Rule of Procedure 5.159).  The State Bar’s discipline office (the Office of Chief Trial Counsel  (OCTC)) asked for publication and now that they have got Smart, they will make liberal use of it in arguing for high levels of discipline in any case remotely close to its facts.  How effective it is as precedent is debatable; on levels of discipline, as opposed to procedural and other issues, the key yardstick is a “balanced consideration of all relevant factors…including factors particular to the offense and the offender” Howard v. State Bar (1990) 51 Cal.3d 215, 221–22; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993.  The facts of Smart are extreme; so is the result.  It has too often been said that when the tool you have is a hammer, every problem looks like a nail.  The is a relative lack of citeable case law on the appropriate discipline for crimes involving assaultive behavior that Smart helps to fill but it doesn’t help establish what the discipline should be for a case less far along the crazy continuum, so it isn’t very helpful.  Nonetheless, it will be cited often, much like In the Matter of Guillory has become a standard reference in OCTC argument on DUI cases.  Guillory is a disbarment case involving serial misdemeanor drunk driving over a period of years by a former Deputy District Attorney who attempted to use his status to evade arrest and prosecution.  Extreme facts, extreme result.

Attorney discipline resulting from criminal convictions has gotten more attention lately because of the State Bar’s fingerprinting snafu that caused all California lawyers to have to submit fingerprints again.  This has resulted in a lot more criminal conviction proceedings in State Bar Court.  Many of those are DUI cases that were never reported as required by the criminal prosecutor (Bus. & Code section 6101(b).) Some of them are many years old.  Precedents like Smart and Gulllory can fuel a tendency to case every criminal conviction in the worse possible light. So far, in my view, the State Bar Court has continued to honor the Supreme Court’s standard, that appropriate discipline is a balanced consideration of all relevant factors, including those particular to the offense and the offender.  After all, it is precedent.

Nguyen v Ford: The Long Goodbye Gets a Little Shorter


Nguyen v. Ford (Sixth App. Dist., case no H046809, filed 4/24/20, published 5/13/20) addresses tolling under the legal malpractice statute of limitations, specifically Code of Civil Procedure section 340.6(a)(2) which provides that  the limitations period is tolled while “the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  Nguyen hired Ford to pursue a discrimination cause of action against her former employer. They lost in Federal District Court.  Nguyen then executed a new fee agreement for Ford’s services in appealing that ruling in the Ninth Circuit.  During the course of the appeal, the attorney-client relationship broke down and Ford filed a successful motion to withdraw from Nguyen’s representation in the appellate court, granted in April 2015.  Nguyen hired new appellate counsel, but to no avail, the Ninth Circuit upholding the dismissal of her case in May 2018.  Six months later she filed a legal malpractice action against Ford.

Nguyen argued that, although Ford stopped representing her in the appeal in April 2015, she never withdrew from representing her in the Federal District court, thus tolling the legal malpractice period of limitations until her action was dismissed in May 2018.  The Sixth District disagreed.  They found that formal withdrawal is not required to end the tolling provision for continuous representation.

“In addition, the inquiry into when representation has terminated does not focus on the client’s subjective beliefs about whether the attorney continues to represent him or her in the matter. Instead, the test is objective and focuses on the client’s reasonable expectations in light of the particular facts of the attorney-client relationship. “In deciding whether an attorney continues to represent a client, we do not focus ‘ “on the client’s subjective beliefs” ’; instead, we objectively examine “evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.”’ [citations]. Representation ends “ ‘ “when the client actually has or reasonably should have no expectation that the attorney will provide further legal services.  [citation]  In other words, tolling under the continuous representation exception ends when “ ‘ “a client has no reasonable expectation that the attorney will provide further legal services.”

Nguyen, slip opinion at 11.  Even if you regard the District Court proceeding and the Appeal as two separate representations, Nguyen could not have had a reasonable expectation that Ford someone continued to represent her in the District Court, given that Ford had served with notice that her motion to withdrawal in the appeal had been granted, a notice of lien by her “former attorney”, and even a notice of withdrawal in the District Court action, all in April 2015!

Nguyen also tried to argue that her breach of fiduciary duty claim was not barred by section 340.6.  The Sixth District noted that section 340.6 applies to the provision of professional services, not just legal services and that Nguyen provided no evidence that the breach occurred other than in the provision of professional services.

The Nguyen case has application even in contexts outside legal malpractice. Not the least is the rule of limitation in disciplinary proceedings, State Bar Rule of Procedure 5.21, which contains a similar tolling provision while the attorney represents the complaining witness.  It is also relevant for the application of Rules of Professional Conduct, such as Rule 1.8.1, which governs business transactions with current clients.

Notwithstanding Nguyen, giving the former client explicit notice that the relationship has ended is still a sound risk management tool.


Hush Agreements on State Bar Complaints



Recently amended AB 3362 is notable for the fact that it reduces State Bar licensing fees (“dues” no longer) by a munificent $34.00.  But a recent amendment also shines a light on a statutory provision often overlooked, often to a lawyer’s sorrow: Business and Professions Code section 6090.5, which addresses what might be called a State Bar “hush” or non-disclosure agreement.  Here is redlined text, showing the current statute and what the amendment would change:

 (a) It is cause for suspension, disbarment, or other discipline for any licensee, whether as a party or as an attorney for a party, to agree  acting on their own behalf or on behalf of someone else, whether or not in the context of litigation to solicit, agree,  or seek agreement, that:
(1) The professional misconduct  Misconduct  or the terms of a settlement of a claim for professional  misconduct shall not be reported to the State Bar.
(2) The plaintiff A complainant  shall withdraw a disciplinary complaint or shall not cooperate with the investigation or prosecution conducted by the State Bar.
(3) The record of any civil action for professional misconduct  action or proceeding  shall be sealed from review by the State Bar.
(b) This section applies to all settlements, whether made before or after the commencement  agreements or attempts to seek agreements, irrespective of the commencement or settlement  of a civil action.
The statute, first passed in the great wave of disciplinary reform of the mid-1980s ((Sen. Bill No. 1569 (1985–1986 Reg. Sess.))means to facilitate the public policy of that the State Bar’s discipline prosecutor should be made aware of potential attorney misconduct. The statute is broad, forbidding even seeking such an agreement as well as making one.  The amendments are mostly intended to clarify the statute, including clarifying that someone acting on the client’s behalf can violate the rule.  The one substantive change is changing replacing “plaintiff” with “complainant” correcting language that has been puzzling for over thirty years.  This hasn’t prevented the statute from resulting in discipline even where the complainant was not a “plaintiff” in any pending actions (see In the Matter of Brockway (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944, 2006 WL 1360438.
In an unpublished Review Department decision (In the Matter of Karnazes, State Bar Court case no.10–O–00334, filed 1/2/14. 2014 WL 232500), the following “non-disparagement clause” agreed to in a civil settlement filed after a State Bar complaint had been filed, was found to violate 6090.5:
‘The Parties agree that in the event of any inquiry regarding this former dispute with the other party, they shall state that all of Zachary’s claims have been resolved and that he is not at liberty to discuss the terms of that resolution. Zachary further agrees not to disparage [Karnazes], her business, or any of her officers or employees.”’

Karnazes involved a different but not unique set of facts involving “serious overreaching of the attorney-client relationship under the guise of parental concern. Respondent Elizabeth M. Barnson Karnazes used the legal system to further her desire to control her adult son, who was also her client. In doing so, she lost sight of her ethical obligations and committed serious misconduct, including misappropriating over $57,000 of his settlement funds through conversion, commingling over $100,000 of her personal funds with his, and filing a lawsuit directly adverse to him. After her son filed a complaint with the State Bar’s Office of the Chief Trial Counsel (State Bar), Karnazes compounded her misconduct by conditioning the release of his funds on his agreement not to cooperate with the State Bar’s investigation. In the end, Karnazes withheld her son’s settlement funds for more than three years and released them only four days before her disciplinary trial.”

Karnazes, slip opinion at page 1. The attorney was disbarred in California and subsequently disbarred in New York on reciprocal discipline.
COPRAC formal ethics opinion 2012-185 addresses violations of section 6090.5 and interpreted the statute broadly, concluding:
Business and Professions Code section 6090.5 bars an attorney’s attempt, in settling a dispute with his or her client, to seek or obtain a client’s oral or written agreement not to make a State Bar complaint. Section 6090.5 may also prohibit a lawyer from seeking representations of the client’s intentions or actions regarding filing a complaint with the State Bar. Even a simple contractual factual recitation that the client has not yet made a State Bar complaint in the past may be an ethical violation since it could produce a chilling effect on the client’s future actions. Once a lawyer seeks such an oral or written agreement, the withdrawal of that request will not cure the ethical violation.
The ethics opinion suggests that the actual language in the proposed hush agreement is less important than whether a “chilling effect” is intended.  For this reasons, creative “work arounds” to evade section 6090.5 are not wise.
Is it an ethics rules or a regulatory rule?  That is an interesting question but ultimately about as relevant as the question of whether Certs is a breath mint or a candy mint, because you can be disciplined for violating it, and the statute itself prescribes substantial discipline: suspension or disbarment.  Moreover, it is buried in a Business & Professions Code, a place many lawyers, otherwise familiar with the Rules of Professional Conduct, overlook, a trap for the unwary.

A Rainy Night In Georgia Legal Ethics

A black man is murdered. Two white suspects tell the police that the killing was self-defense. The police do not pursue the investigation.  Later, video is leaked to the news media that appears to show that the murder was not self-defense, that the murdered man was defending himself against one of the shotgun-wielding suspects.  The video provokes outrage.  The suspects are arrested and charged with murder, assault and assisting a felony.

And the source of the leaked video – a lawyer that the suspects had consulted with.

It sounds like a law school hypothetical but it isn’t.  It is the Ahmaud Arbery case. It presents one of the most difficult and disturbing problems in legal ethics.

Lawyers owe a duty of loyalty to their clients, including a duty to not to disclose confidential information that would be harmful to the client’s interests or embarrassing to the client.  That duty is also owed to prospective clients, even those who never ultimately employ the lawyers, on the theory that it encourages prospective clients to be candid with their prospective lawyer, to give the prospective lawyer all the information the lawyer needs to evaluate the case.  American Bar Association (ABA) Model Rule 1.18 reflects this tenet of legal ethics:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Every state has now adopted some version of the Model Rules, including Model Rule 1.18, with every state making its own changes.  Even California, the last holdout, has now adopted its own California customized version of the Model Rules, including its own Rule 1.18.  Georgia has not adopted Rule 1.18 but does have a comment to its confidentiality rule 1.6 that covers the same ground:

[4A] Information gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10

According to the New York Times:

The lawyer, Alan Tucker, said in an interview on Friday that the video had come from the cellphone of a man who had filmed the episode and that he later gave the footage to the radio station. Mr. Tucker’s role was confirmed by Scott Ryfun, who oversees the station’s programming.

Asked why he had leaked the video, Mr. Tucker said he had wanted to dispel rumors that he said had fueled tension in the community. “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” Mr. Tucker said.

“It got the truth out there as to what you could see,” he added. “My purpose was not to exonerate them or convict them.”

But for the consultation with suspects, Tucker would not have obtained the video. If Tucker had not leaked the video, murderers might have gotten away their crime.  But it looks like Tucker violated important principles of legal ethics, loyalty and the preservation of confidentiality.  Does loyalty to the community trump loyalty to the client?  Should the fact that he might have prevented a miscarriage of justice mitigate any violation?

Abbe Smith, in her law review article Telling Stories and Keeping Secrets  8 UDC/DCSL L. Rev. 255-268 (2005), came to this conclusion:

It could be that, in the end, I don’t have much faith in lawyers. I don’t want them to exercise their own moral discretion about whether to disclose client confidences. I don’t want to give lawyers the authority to determine when it is in the public interest to divulge confidences, even if they were allowed to do so only under limited circumstances, such as “where necessary to avoid ‘substantial injustice.'” I worry about lawyers acting as a “self-appointed moral elite,”‘ over-looking or overriding long-standing ethical standards in order to advance their own views of justice.

When a lawyer is confronted with the hardest legal ethics questions in concrete terms, they churn in the lawyer’s conscience, like a dark night in a Georgia thunderstorm. As they should.  But in the end, I agree with Smith. I can admire the “cause” lawyer, who thinks the cause trumps everything else, but only to a degree. In the end, we are have taken an oath to support the law and the ethical rules, and we have to pay the price for our choice.

State Bar Sues for Operating Uncertified Legal Referral Service

The State Bar of California has filed an action in San Francisco Superior Court alleging that is operating as an uncertified legal referral service.

This comes after the California Supreme Court’s denial of’s petition for review of the Court of Appeal decision in Jackson v. on March 11, 2020.

It also comes after has been operating for more than 20 years.  After a brief flurry of activity in the late 1990’s, the State Bar ignored uncertified legal referral services and and many similar businesses have operated with impunity.  No longer.  Mr. Jackson and the Court of Appeal have forced the State Bar’s hand, with some nudging from the Supreme Court.

Attached to the complaint as Exhibit A is a letter to dated March 31, 2020, from Alison Lippa, Assistant General Counsel of the State Bar.  It details’s failed efforts to submit an application to become a certified legal service after the Jackon decision came down, efforts that failed in part because of the requirement that lawyers who participate in a certified legal referral service have malpractice insurance.  It also references an earlier exchange of correspondence between Leah Wilson, former Executive Director of the State Bar, and, where sought assurances that lawyers who accepted referrals would not be subject to State Bar discipline.  Ms. Wilson, pointedly, could offer no such assurance.

Lawyers who accept referrals from an uncertified legal referral service could be subject to discipline under several legal theories.  Business and Professions Code section 6155(a) says that no lawyer shall accept referrals from an uncertified legal referral service.  A violation of that section could be prosecuted as a violation of Business and Professions Code section 6068(a), the “gateway” statute that says that it is an attorney’s duty to support the law (see In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476.)  Such a referral might also violate Business and Professions Code section 6152, which prohibits capping, again through 6068(a) gateway.  This stature also makes capping a crime.  Finally, Rule of Professional Conduct 7.2(b) prohibits payment “for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm” subject to an explicit exception for payment to a certified legal referral service (Rule 7.2(b)(2).)

Will the State Bar’s Office of Chief Trial Counsel (OCTC) actually prosecute lawyers for participating in uncertified legal referral services?

It did in the 1990s;  those cases were all settled for reproval level discipline, all but one private reprovals.

It may again.  It can’t be ruled out, especially given the recent zeal displayed by OCTC in seemingly trivial matters.  In the words of one State Bar discipline defense attorney, “no fish is too small to fry.”  Perhaps they will merely rely on the in terrorem effect of the recently filed action against  OCTC is largely moved by complaints and few, if any, complaints are made that involve uncertified legal referral services. But OCTC is not limited to complaints and can open its own investigations, dubbed SBIs, for “State Bar Investigations.”  Discovery in the action might yield a list of potential targets and a few might be prosecuted, just to put some teeth into that in terrorem effect.

In the meantime, lawyers who use these services are assuming the risk, a risk difficult to quantify.


Reinstatement: A Notable Dissent That Few Will Note


On March 25 ,2020, the California Supreme Court denied a petition for review of a State Bar Court decision in a reinstatement case filed by former attorney Stephen J. Liebb.  That in itself is unremarkable;  the Supreme Court denies most petitions for review of State Bar Court decisions.  Liebb is notable because Justices Liu and Cueller would have voted to accept Mr. Liebb’s petition and filed a statement of dissent. It is a little hard to read on the Court website, so it is reproduced below.

The issue is when Mr. Liebb’s rehabilitation clock begins to run.  The State Bar Court did not give Mr. Liebb credit for his good works done while serving time in prison for first-degree murder, citing the Court’s decision in In Re Menna (1995) 11 Cal.4th 975, 989 for the proposition that his clock doesn’t begin to run until his release from prison.  The Review Department, like the hearing judge, found the 13 months between his release and the reinstatement hearing insufficient to find a “sustained period of exemplary conduct”, the formula articulated in Menna required to establish rehabilitation.

What is notable is that two justices were willing to revisit that part of Menna that had been regarded as black letter law.  Of course, only the Supreme Court can do that.  The context is that the Supreme Court has granted very few petitions for review from any decisions of the State Bar Court since the California Rules of Court were revised in 1992.  Sometimes it seemed like they had exited the field altogether.  It is good to know that they haven’t, even if Liebb’s case did not make the cut.

The request for judicial notice is granted. Liu and Cuéllar, JJ., are of the opinion the petition should be granted.

DISSENTING STATEMENT BY LIU, J. In 1983, when petitioner Stephen Liebb was 26 years old, he was convicted of first degree murder and assault with a deadly weapon. Liebb, who was a lawyer at the time, resigned from the State Bar with disciplinary charges pending. In prison, Liebb turned his life around. He maintained a discipline-free record for three decades, participated in a dozen rehabilitative programs, obtained an associate’s degree, and provided legal assistance to fellow inmates. In all, Liebb spent 31 years in prison and three years on parole, which he completed early. Upon release, he continued his rehabilitation by volunteering with a law school organization and working at nonprofit organizations dedicated to helping the formerly incarcerated reenter society. In 2017, 36 years after committing his crimes, Liebb sought reinstatement to the bar. The Hearing Department of the State Bar Court (Hearing Department) found that “[e]vidence of [Liebb’s] rehabilitation is most compelling and impressive. He has taken responsibility for his life and past misconduct; he has resurrected himself into a trustworthy, law-abiding and conscientious member of the community.” Nonetheless, it denied his reinstatement on the ground that he had not demonstrated exemplary conduct for a sufficient period of time. The court declined to credit Liebb’s decades of rehabilitation efforts while in custody and considered only the 10 months between his discharge from parole and the filing of his reinstatement petition. The State Bar Court Review Department (Review Department) affirmed the denial on the same grounds, stating that Liebb’s more than three decades of rehabilitation in custody was entitled to “little weight.”

Our law has not applied such a draconian approach. We have said that evidence of conduct ordinarily required of inmates and parolees does not rise to the level of “exemplary conduct” necessary to show rehabilitation. (In re Gossage (2000) 23 Cal.4th 1080, 1096 (Gossage).) But that proposition, even if correct, does not address the situation here, where there is persuasive evidence that Liebb has demonstrated rehabilitative efforts in custody that go well beyond the conduct ordinarily required of inmates and parolees. Moreover, there are reasons to doubt that a decades-long record of ordinary good behavior in custody should be treated with greater skepticism than noncustodial good behavior, at least with respect to life inmates who have served sentences as long as Liebb has served. The compelling record in this case presents an opportunity to address what weight an applicant’s rehabilitation while in custody may be given in reinstatement proceedings, an issue we have not addressed in 20 years. Much has changed in those 20 years. Thousands of inmates have served long sentences, and many now have realistic hopes of release. Our Legislature has ameliorated the collateral consequences of a criminal conviction, allowing formerly incarcerated persons to serve on juries (Stats. 2019, ch. 591, § 1), to have a fair shot at employment (Stats. 2017, ch. 789, § 2), and to seal their records (Stats. 2019, ch. 578, § 7). Our electorate has recognized that rehabilitative behavior in custody may lead to sentencing reductions. (Cal. Const., art. 1, § 32, added by initiative, Gen. Elec. (Nov. 8, 2016), commonly known as Prop. 57.) I would grant review to consider when the legal profession may also afford second chances to formerly incarcerated individuals with compelling records of rehabilitation in custody.

Stephen Liebb’s past misconduct was as egregious as his subsequent redemption has been remarkable. In 1981, Liebb, then 25, had recently graduated from UCLA School of Law and become a member of the California bar. He began having disagreements with the landlord of his apartment, who was also the father of his friend Michael Diller. After several violent outbursts in which Liebb assaulted Michael’s brother and an employee in the apartment’s management office, Liebb confronted Michael and plunged a knife into his chest, killing him. Liebb was convicted of first degree murder and assault with a deadly weapon. He was sentenced to 26 years to life imprisonment with the possibility of parole. In 1983, Liebb was placed on interim suspension from the State Bar pending the final disposition of his criminal proceedings, and in 1989, he voluntarily resigned from the State Bar. While incarcerated, Liebb’s record was free of violence since 1989 and, according to the Hearing Department, “excellent since 1991.” He underwent psychological therapy to deal with his anger management issues. Liebb completed 12 rehabilitation programs and classes involving individual and group therapy and self-help treatment. He also completed a three-year paralegal program and received an Associate of Arts degree from a college program run by the Prison University Project. Throughout his participation in these programs, Liebb received overwhelmingly laudatory reports from program supervisors, teachers, and corrections officers. Liebb also assisted fellow inmates with legal work, helping them prepare habeas petitions, file civil rights lawsuits, and secure new parole hearings. In 2012, Liebb was granted parole after six previous denials. The parole board (Board) weighed the severity of his crimes against his age and progress toward rehabilitation, and concluded that Liebb no longer posed a danger to public safety. The Board considered the facts that Liebb was 56 at the time of the hearing, that he demonstrated genuine remorse, that he presented a low risk of violence to society, and that he had been free of discipline for 21 years in prison. He was released on parole in October 2013. On parole, Liebb continued his rehabilitation. He attended anger management classes and Alcoholics Anonymous meetings five days a week, participated in a mentorship program for recently released individuals, and attended weekly therapy sessions. In 2016, Liebb began working as a law clerk. Since then, he has also worked for two nonprofit organizations dedicated to assisting former inmates reintegrate into society, and he has volunteered with San Francisco Public Works and University of California Hastings College of the Law. Liebb was discharged from parole four years early in November 2016, which, according to expert testimony cited by the Hearing Department, “indicates, in the eyes of the parole board, that [Liebb] poses zero risk to public safety.” In support of his good moral character, Liebb presented an “impressive array of 17 highly reputable character witnesses credibly attesting on his behalf, ” including his employers and attorneys who knew him personally. The Hearing Department also found that Liebb had expressed remorse for his crimes and, as required by the rules governing reinstatement, possessed the present ability and learning in the general law. The Hearing Department “commend[ed] Petitioner’s tremendous efforts in successfully integrating into society and commitment to making amends for his crime.”

Nonetheless, the Hearing Department denied reinstatement on the ground that Liebb had not “shown exemplary conduct over an extended period of time since his discharge from supervised release in November 2016.” It declined to credit Liebb’s years of rehabilitation in prison and on parole because ” ‘[g]ood conduct is normally demanded of a prisoner and a parolee.’ (In re Menna [(1995)] 11 Cal.4th [975, ] 989.) ‘It is not enough that [Petitioner] kept out of trouble while being watched on probation; he must affirmatively demonstrate over a prolonged period his sincere regret and rehabilitation.’ (Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 939.)” The Review Department affirmed, stating that “little weight can be placed on good conduct while in prison for the purposes of showing rehabilitation in State Bar matters.” II. In California, a petitioner for reinstatement to the practice of law who previously had been disbarred or resigned with disciplinary charges pending must (1) pass a professional responsibility examination within one year prior to filing the petition; (2) establish rehabilitation; (3) establish present moral qualifications for reinstatement; and (4) establish present ability and learning in the general law by providing proof of taking and passing the Attorneys’ Examination within three years prior to the filing of the petition. (Rules Proc. of State Bar, rule 5.445.) There is no dispute that Liebb has fulfilled the first and fourth requirements. Only his rehabilitation and present moral qualifications are at issue. The Hearing Department and Review Department relied on a line of cases from this court to conclude that Liebb’s rehabilitation in custody was entitled to little or no weight. (See Gossage, supra, 23 Cal.4th at p. 1099; In re Menna, supra, 11 Cal.4th at p. 989 (Menna); Seide v. Committee of Bar Examiners, supra, 49 Cal.3d at p. 939 (Seide); In re Giddens (1981) 30 Cal.3d 110, 116 (Giddens).) But those cases do not establish such a broad rule; instead, they stand for the proposition that evidence of conduct ordinarily required of inmates and parolees usually does not rise to the level of “exemplary conduct” necessary to show rehabilitation. (Gossage, at p. 1096.) They do not suggest that evidence of rehabilitative efforts above and beyond the conduct ordinarily required in custody must or should be discounted. We first suggested that conduct ordinarily required of individuals in custody should be discounted in Giddens, supra, 30 Cal.3d 110, where we ordered the disbarment of an attorney for financing a months-long scheme to sell amphetamines. (Id. at p. 113.) At the time of the hearing, he had served two years in prison and was on parole. (Id. at p. 112.) Weighing the severity of the crime against mitigating factors, this court concluded that the attorney should be disbarred. (Id. at pp. 115-116.) We stated that although the attorney could apply for reinstatement at a later date, on the record before us “[t]he lack of any extenuating circumstances surrounding the misconduct convinces us that further proof is needed of the requisite ‘standard of fitness’ during a period when petitioner is neither on parole . . . nor under supervision of the bar.” (Id. at p. 116.) We did not explain our reasoning for this limitation.

This court offered somewhat more elaboration in Seide, supra, 49 Cal.3d 933, where we denied an applicant admission to the bar for multiple arrests and convictions for drug trafficking over a seven-year period, including when he was in law school and studying for the bar. (Id. at p. 936.) At the time of his State Bar hearing, five years after the commission of his last crime, the petitioner had served a sentence of 147 days in prison and was still on federal probation. (Id. at pp. 935-936.) He presented no evidence of rehabilitation while incarcerated. As evidence of his rehabilitation on probation, the petitioner showed that he had started a family, stayed out of prison, and found employment. But we afforded these achievements little weight, stating that they ” ‘fail[] to indicate the type of rehabilitation normally expected in this type of case. The majority of [petitioner’s] post-incarceration activities constitute what is ordinarily expected as a member of society.’ ” (Id. at p. 941.) The evidence the petitioner provided did not demonstrate that his conduct was above and beyond the ordinary. In Menna, supra, 11 Cal.4th 975, we declined to admit an applicant to the State Bar who, over a period of three years, engaged in compulsive gambling, misappropriated his clients’ funds to pay off his gambling debts, and manufactured methamphetamine for sale. When the petitioner applied for admission to the California State Bar after being permanently disbarred from New Jersey, it had been eight years since his last conviction and five years since he completed probation for that conviction. (Id. at pp. 980-981.) While incarcerated, the petitioner had organized and led a weekly Gamblers Anonymous meeting and continued to attend such meetings after his release. (Id. at p. 981.) But we declined to credit those three years in prison and on parole, stating that “[g]ood conduct is normally demanded of a prisoner and a parolee.” (Id. at p. 989, citing Seide, supra, 49 Cal.3d at p. 939, Giddens, supra, 30 Cal.3d at p. 116.) Most recently in Gossage, supra, 23 Cal.4th 1080, we declined to admit an applicant to the State Bar who had a nine-year-long history of drug, forgery, theft, and driving offenses, as well as a voluntary manslaughter conviction for killing his sister. (Id. at pp. 1084-1093.) The Review Department credited the petitioner with a 14-year period of rehabilitation between the time he entered prison for his last offense and the time he appeared for his State Bar hearing. (Id. at p. 1099.) The petitioner had spent two of those years in prison and on parole, and had subsequently “repeatedly violated state traffic laws and sustained several misdemeanor convictions for mishandling [those] matters in court.” (Id. at p. 1088.) The petitioner did not submit any evidence of rehabilitation while in custody, except that it was in prison that he vowed to become sober. Unlike the Review Department, we did not credit the petitioner’s years in prison or on parole, stating that “[s]ince persons under the direct supervision of correctional authorities are required to behave in exemplary fashion, little weight is generally placed on the fact that a bar applicant did not commit additional crimes or continue addictive behavior while in prison or while on probation or parole.” (Id. at p. 1099, citing Menna, supra, 11 Cal.4th at p. 989, Seide, supra, 49 Cal.3d at p. 941.) Moreover, we noted that the petitioner violated probation and accrued a number of driving offenses after his release. (Gossage, at p. 1099.)

None of the above cases held that any rehabilitative conduct in custody must be discounted in the reinstatement analysis. They concluded only that behavior consistent with the minimum requirements of custody is usually not evidence of the rehabilitation necessary for readmission to the bar because readmission requires demonstration of conduct above and beyond what is required. Our decisions said that not much weight can be given to ” ‘activities [that] constitute what is ordinarily expected as a member of society’ ” (Seide, supra, 49 Cal.3d at p. 941), behavior “normally demanded” of a person in custody (Menna, supra, 11 Cal.4th at p. 989), or the fact that a petitioner did not “commit additional crimes or continue addictive behavior” (Gossage, supra, 23 Cal.4th at p. 1099). But our cases did not discount good conduct above and beyond that which is ordinarily required of inmates and parolees. We had no occasion to consider such conduct because none of the petitioners in the cases above submitted substantial evidence of such conduct. Liebb’s crimes are more serious than the petitioners’ offenses in these previous cases. None of those petitioners committed first degree murder. But Liebb has also submitted overwhelming evidence of an unbroken decades-long path of affirmative conduct demonstrating his rehabilitation beyond that of an ordinary prisoner or parolee. His completion of a dozen self-help programs and academic degrees, his legal assistance to inmates, and his volunteer work on parole and early discharge from parole seems as exemplary as it gets for an individual in his circumstances. The Review Department disagreed, explaining that his programming in prison cannot be considered because “the Board required the positive programming he engaged in while in prison as a condition for his release.” But this reasoning moves the goalposts for what is required of inmates. Conditions for early release, which an inmate need not fulfill, differ from the rules and regulations that all inmates must follow. In any event, the Hearing Department indicated that Liebb exceeded even the requirements for release, noting that “[t]he Board later found him to have far exceeded the standard of rehabilitation.”

Moreover, it is significant that Liebb’s incarceration and record of affirmative good conduct in custody was far lengthier than those of the petitioners in the previous cases. (See Giddens, supra, 30 Cal.3d at p. 112 [two years in prison, two years on parole]; Seide, supra, 49 Cal.3d at p. 936 [147 days in prison, five years on probation]; Menna, supra, 11 Cal.4th at p. 980 [one year in prison, two years on parole]; Gossage, supra, 23 Cal.4th at pp. 1086-1087 [one year in prison, one year on parole].) Although avoiding discipline during a brief period of incarceration may have limited value as evidence of rehabilitation or good moral character, I do not think the same can be said of three decades of rehabilitative behavior comprising, in Liebb’s case, more than half of his life at the time of his release on parole. In sum, Liebb has shown compelling evidence of rehabilitation through decades of concerted effort, exemplary behavior, and positive contributions to his community both in and out of custody. He does not resemble the petitioners in our prior cases, and what we said in those cases does not address Liebb’s circumstances. III. The Review Department said that “[g]iven Liebb’s grievous misconduct, a longer period of time is required” after his discharge from prison and parole, and that despite Liebb’s remorse and rehabilitation efforts, “[a] truer indication of Liebb’s rehabilitation will be if he can demonstrate exemplary conduct over an extended period of time that establishes his moral fitness to practice law.” I recognize that the rehabilitation necessary to practice law may be greater than the rehabilitation necessary to be released from prison. But it is unclear what additional time would reveal about Liebb’s moral fitness that he has not already demonstrated. Liebb was 62 at the time of his hearing; almost 40 years have elapsed since he committed his terrible crimes; and Liebb has spent more than three decades in continuous efforts to rehabilitate himself, to “mak[e] amends for his crime, ” and to “successfully integrat[e] into society.” As the Hearing Department found, “He has taken responsibility for his life and past misconduct; he has resurrected himself into a trustworthy, law-abiding and conscientious member of the community.” Would another three, four, or five years of programming, steady employment, or community service – against the backdrop of Liebb’s “most compelling and impressive” rehabilitation efforts over more than three decades – tell us much more about his character than the record already shows? The Review Department provided no clear answer to this question. It did not dispute the hearing judge’s finding that “Liebb demonstrated remorse for his crimes and his victims.” The Review Department’s decision asserts that Liebb’s therapy and programming in prison, while “contribut[ing] substantially to his personal well-being, ” “do not demonstrate truly exemplary conduct in the sense of returning something to the community Liebb harmed.” But it is not clear why Liebb’s comprehensive record of therapy and self-help programming, even if focused on bettering himself, should not count as rehabilitative; indeed, Liebb’s serious and sustained engagement with therapy and programming while in prison seem paradigmatically rehabilitative. In any event, contrary to any suggestion that Liebb has not returned something to the community, the record is replete with evidence of Liebb’s volunteer and community service activities both in and out of prison. The Review Department merely recited these activities without considering them in its analysis.

The Review Department also noted that “Liebb has not continued anger management therapy after his release from supervised parole, which is important because it directly addresses his past violent criminal misconduct.” But any suggestion that Liebb may still pose a danger to the public is belied by the record. As the Hearing Department noted, Liebb had been violence-free since 1989, the Board found that he “presented a relatively low risk of violence in the free community, ” and an expert observed that Liebb’s “early discharge from parole indicates, in the eyes of the parole board, that Petitioner poses zero risk to public safety.” The Review Department did not address these facts. In sum, the Review Department did not explain how further indicia of rehabilitation over “a longer period of time” would materially alter the present portrait of this applicant. To be sure, the length of time since an individual’s misconduct is a consideration relevant to reinstatement. (See Gossage, supra, 23 Cal.4th at p. 1096 [“Cases authorizing admission on the basis of rehabilitation commonly involve a substantial period of exemplary conduct following the applicant’s misdeeds.”].) The more time that has elapsed since a person’s misconduct, the more confident one can be that the person has reflected on past wrongs and has changed, and “the more serious the misconduct . . . , the stronger the applicant’s showing of rehabilitation must be.” (Ibid.) But, as the Hearing Department observed, Liebb “has gone through a process of reformation and transformation. He is not the same person as he was in 1981, almost 37 years ago . . . . He has clearly now matured. He is one of the convicted who has so much to teach society about rehabilitation and redemption – what it takes to be a person again and give back to society.” Whatever the ultimate merits of Liebb’s reinstatement petition, I would grant review to address the important legal question this case presents: whether a reinstatement petitioner’s exceptional efforts devoted to rehabilitation must be discounted or ignored because they were made while in prison and on parole.

Separate and apart from the fact Liebb’s good conduct has gone well beyond what is ordinarily required in prison or on parole, I have doubts about discounting a petitioner’s good conduct in custody even if such conduct is ordinarily required. As noted, our cases have relied on the unexamined rationale that because good behavior in a custodial setting is mandatory, it is not probative of good moral character. This proposition seems questionable on several grounds. First, it is not clear what evidence supports the assertion that an inmate who displays good behavior in prison does so only because the rules require him to do so, and not because the inmate’s compliance is indicative of rehabilitative progress. A different view is that inmates, especially those with long prison terms, demonstrate good behavior not simply because they are supervised, but because over time they have “progressed through phases of increased conscience, remorse, self-discovery, and redemption through service to others.” (Kreager & Kruttschnitt, Inmate Society in the Era of Mass Incarceration (2018) 1 Annual Review of Criminology 261, 269.) Indeed, the “bad man” theory of compliance (Holmes, The Path of the Law (1897) 10 Harv. L.Rev. 457, 461) seems at odds with the basic penological principle that incarceration, among its many goals, serves to rehabilitate the offender.

Second, as the Hearing Department recognized, maintaining a discipline-free record is “difficult to do . . . in a prison setting.” Given the restrictive rules of prison and the myriad ways those rules can be violated (see People v. Contreras (2018) 4 Cal.5th 349, 378-379), it is all the more remarkable when an inmate avoids violence and other rule infractions while in custody for as long as Liebb did. Indeed, there is widespread agreement in the penological literature that opportunities and incentives for violence and misconduct abound in prison. (See Cochran & Mears, The Path of Least Desistance: Inmate Compliance and Recidivism (2017) 34 Just. Q. 431, 435; Bottoms, Interpersonal Violence and Social Order in Prisons (1999) 26 Crime & Just. 205, 241; Robertson, The Constitution in Protective Custody: An Analysis of the Rights of Protective Custody Inmates (1987) 56 U.Cin. L.Rev. 91, 93-94; see also Farmer v. Brennan (1994) 511 U.S. 825, 858-859 (conc. opn. of Thomas, J.) [“Prisons are necessarily dangerous places . . . . Regrettably, ‘[s]ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . .’ “].) Prison environments and their accompanying dangers often cause inmates to resort to violence to protect themselves or to assert social dominance, making brutality a common occurrence. (See Irwin, The Warehouse Prison: Disposal of the New Dangerous Class (2005); Rhodes, Total Confinement: Madness and Reason in the Maximum Security Prison (2004); Adams, Adjusting to Prison Life (1992) 16 Crime & Just. 275; Levin, Fight, Flee, Submit, Sue: Alternatives for Sexually Assaulted Prisoners (1985) 18 Colum. J.L. & Soc. Probs. 505, 508-509.) Underground economies involving the sale of drugs, cell phones, and other contraband create webs of exploitation and debts enforceable by violence. And understaffing and overcrowding have made these problems worse. (See Brown v. Plata (2011) 563 U.S. 493, 520 [noting that overcrowding in California prisons “promote[s] unrest and violence, making it difficult for prison officials to monitor and control the prison population”].) A clean record is therefore difficult for any prisoner to maintain. The fact that Liebb managed to do so for 21 years, including periods when his prisons (Corcoran and San Quentin) were badly overcrowded, seems quite probative of his character, separate from the positive programming he completed over those years.

Similarly, we have “recognize[d] the difficulties an exconvict faces in assimilating himself back into society.” (Seide, supra, 49 Cal.3d at p. 938.) Parole involves a high-supervision environment and strict rules of conduct that are easy to violate. (Hyatt & Barnes, An Experimental Evaluation of the Impact of Intensive Supervision on the Recidivism of High-Risk Probationers (2017) 63 Crime & Delinq. 3, 5-6, 26.) I do not see why Liebb’s spotless record on parole – which, along with his steady employment and community service activities, earned him an early discharge – should not be considered as evidence of rehabilitation in the reinstatement analysis. It is notable that several other jurisdictions give consideration to in-custody rehabilitation efforts in the bar reinstatement context. They have either expressly stated that good conduct while in custody is entitled to some weight (Statewide Grievance Comm. v. Ganim (2014) 311 Conn. 430, 467, fn. 35 [87 A.3d 1078]), or they have regarded such conduct to be so obviously relevant that they have considered the conduct without comment (Matter of Simmons (2018) 190 Wn.2d 374, 390 [414 P.3d 1111]; In re Cooke (2012) 425 Md. 652, 690 [42 A.3d 610]; In re Reinstatement of Ditrapano (2018) 240 W.Va. 612, 618 [814 S.Ed.2d 275]; Application of Rowell (1988) 305 Or. 584, 592 [754 P.2d 905]; In re Manville (D.C. 1988) 538 A.2d 1128, 1135). These decisions, several of which postdate Gossage, provide further context for why I believe this case presents an appropriate occasion for us to reexamine the relevance of in-custody rehabilitation for bar proceedings in our state. V. Liebb’s record of rehabilitation is compelling, and the Hearing Department and Review Department denied Liebb’s reinstatement petition on the sole ground that he had not shown a sufficient period of rehabilitation outside of custody. I would grant review to consider what weight may be given to his lengthy rehabilitation while in custody and under supervision in assessing his application for reinstatement to the State Bar. In light of the court’s denial of review, I note that it has now been more than three years since Liebb was discharged from parole and nearly two years since he was denied reinstatement by the Hearing Department. Liebb may reapply for reinstatement two years following the effective date of an adverse decision. (Rules Proc. of State Bar, rule 5.442(c).)