Five things California lawyers have to report to the State Bar
By: Gregory T. Fayard
California lawyers have certain reporting obligations to the State Bar. These obligations are mandatory. The reporting must occur within 30 days of the event. Failing to report can lead to discipline, jeopardizing the lawyer’s law license. Here are five things California lawyers must report to the Bar (which they may not be aware of):
- Being sued three or more times for malpractice or other wrongful conduct within a 12-month period. This reporting requirement is triggered only if sued for something the lawyer did in her professional capacity. Hence, a lawyer being sued three times in 12 months for breaching a home improvement contract, or causing a car accident, and for legal malpractice would not require reporting. (Cal. Bus. & Prof. Code, § 6068(o)(1).)
- If a California lawyer has a judgment against him for fraud, misrepresentation, breach of fiduciary duty, or gross negligence in his professional capacity, that judgment must be reported within 30 days. Only a judgment of “gross negligence” needs to be reported, and only in his professional capacity. So arguably, a judgment for legal malpractice is not “gross negligence” and does not need to be reported. (Id., § 6068(o)(2).)
- If the California lawyer is sanctioned for more than $1,000, that is reportable. This means discovery sanctions above $1,000 are reportable. Some judges are aware of this reporting requirement and sanction firms instead of individual attorneys to avoid the reporting obligation, (and doing the lawyer a favor). (Id., § 6068(o)(3).)
- If the California lawyer is disciplined by another state bar or another agency or board, such as the Department of Real Estate if the lawyer is a broker for example, that would need to be reported. Put another way, if the California lawyer did something in his non-lawyer capacity but was disciplined by an agency or board that has nothing to with the practice of law, that “discipline” would be reportable. For example, the lawyer who is also a licensed contractor who is disciplined by a Contractors State License Board would need to report that discipline to the Bar. (Id., § 6068(o)(6).) Likewise if the lawyer is disciplined by the Bar in another state, that would need to be reported to the California Bar.
- Lastly, for those California lawyers without malpractice insurance who settle a case for fraud, misrepresentation, breach of fiduciary duty, or negligence committed in a professional capacity, the “settlement” must be reported. This means the uninsured lawyer who settles a malpractice case for nuisance value would need to report that settlement. (Cal. Bus & Prof Code, § 6086.8(b) and (c).) This reporting obligation does not require “gross negligence”—regular negligence is all that is needed to trigger this reporting requirement. The State Bar has mandatory forms for reporting the above events. https://www.calbar.ca.gov/About-Us/Forms#mandatory Failing to report may serve as a basis for discipline. (Cal. Bus & Prof Code, § 6068(o)(10).)
If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.