At its conference last week, the Supreme Court denied a petition filed by the State Bar’s Office of Chief Trial Counsel in In re C.C. The petition sought review of a State Bar Court Review Department published opinion allowing an attorney with drug and alcohol issues to participate in the Bar’s alternative discipline program that can lead to milder discipline. The Review Department so ruled despite what it characterized as “considerable” and “serious” professional misconduct over seven years and what the attorney himself agreed included “a habitual disregard of his clients’ interests and misconduct involving moral turpitude.”

The program was established under the Legislature’s 2001 Attorney Diversion and Assistance Act (Bus. & Prof. Code section 6230 et seq.) with the goal of having “the State Bar of California seek ways and means to identify and rehabilitate attorneys with impairment due to substance use or a mental health disorder affecting competency so that attorneys so afflicted may be treated and returned to the practice of law in a manner that will not endanger the public health and safety.” Successful completion of the alternative program allows for lesser discipline than the attorney would otherwise face.

The Review Department construed for the first time a rule making an attorney ineligible for the alternative program if “the attorney’s disbarment is warranted.” (Rules of Procedure of the State Bar, rule 5.382(C)(1).) Although the eligibility criteria have been narrowed — the opinion states “[i]n 2004, there were no limitations on eligibility; in 2007, attorneys who were subject to summary disbarment were ineligible; and, since 2009, attorneys are ineligible if ‘disbarment is warranted’ ” — the Review Department held that “disbarment is warranted” means when “disbarment is required.” “[O]nly those attorneys who would otherwise necessarily be disbarred should be prohibited from acceptance into ADP, not just those attorneys who have a substantial possibility of disbarment,” the opinion concludes.

The OCTC disagreed with the Review Department’s interpretation of when “disbarment is warranted.” The petition claimed, “In addition to being contrary to the phrase’s plain meaning and unsupported by any dictionary definition, it nullifies the Board of Trustee’s adoption of Rule 5.382(C)(1), which amended the prior version of the ADP rules, under which the only class of attorneys ineligible for ADP were those who were convicted of crimes subjecting them to summary disbarment pursuant to Business and Professions Code section 6102, subdivision (c).” The OCTC contended that an attorney is ineligible when disbarment “is justified” and that the attorney in question should be disbarred instead of being accepted into the alternative discipline program.

The attorney’s answer to the petition is here and the OCTC’s reply is here.