DUI and a State Bar License

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DUI and a State Bar License

DUI and a State Bar License

DUI and a State Bar License – What happens if you’re arrested for a DUI?

Attorneys all licensed by the State Bar of California.  As officers of the court and agents to effectuate the law, they are held to a higher standard than the general public.  Violation of the laws is seen to be a disrespect for our system of our laws, and can be grounds for professional discipline.

Under Business and Professions Code §§ 6101, 6102, the State Bar receives notice of criminal charges and convictions. Upon notification, and investigation is opened immediately, although there may be little action taken while the case is resolved in plea bargaining or trial.

An arrest doesn’t trigger a requirement to report to the bar.  But a conviction would. And certain other actions do as well.

Under a new proposed law, if approved by the California Supreme Court, all active California attorneys will need to be fingerprinted. The State Bar will require new fingerprinting, or re-fingerprinting to be completed by April 30, 2019, to avoid incurring penalties. This will enable the State Bar to obtain attorneys’ criminal record information from the California Department of Justice and the FBI, in compliance with state law. Information regarding the implementation and penalty schedule, costs, and logistics will be provided to attorneys upon Court approval.

The State Bar has issued an FAQ to help facilitate self-reporting. The full FAQ is available on the State Bar website.

Mandatory reporting forms are also available online.

Actions that require mandatory self-reporting to the State Bar include, but are not limited to the following:

  • The bringing of an indictment or information charging you with a felony;
  • A misdemeanor conviction for a crime committed in the practice of law or in which a client was the victim;
  • A misdemeanor conviction for a crime that necessarily involves dishonesty or moral turpitude, or an attempt, conspiracy or solicitation to commit such a crime;
  • A felony conviction.

The State Bar is statutorily authorized to receive criminal info from the California Department of Justice for purposes of admission, discipline, and regulation of attorneys. The State Bar is also statutorily authorized to receive subsequent arrest notification services for attorneys.

The State Bar’s main inquiry into its members’ conduct is whether it constitutes moral turpitude per se, or is “other misconduct warranting discipline” in order to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession.

Conduct such as one DUI probably would not be grounds for the more severe actions above a warning.  But multiple convictions for DUI could be considered grounds for discipline because a serious substance abuse problem presents the public, and the attorney’s clients, with potential harm.

DUI and a State Bar License – what happens if you are convicted of a DUI?

Under California law, the Commission cannot issue  any credential to and requires the Commission to revoke a credential already issued to a person that is convicted of certain crimes, as follows:

  • anyone who has been convicted of any sex offense defined under Education Code Section 44010;
  • anyone who has been convicted of any narcotics offense defined under Education Code Section 44011;
  • anyone who has been convicted of any crime listed in Education Code section 44424;, or
  • anyone who has been found to be insane by a federal or state court;
  • anyone who has been judicially determined to be a mentally disordered sex offender under the law.

Luckily, a DUI is not a category of crime that fits any of the above.  In most factual circumstances, a DUI conviction would not be a problem.  If it was on school grounds, during school hours, or involved students in the car, that may be a huge problem, however.

A DUI and State Bar Reporting Requirements

Attorneys are required to self-report to the State Bar of California all felony charges and convictions (and keep in mind that some DUIs can be a felony), as well as misdemeanors committed in the practice of law and some misdemeanors committed outside the practice of law. The duty to report felonies and misdemeanors includes the following: (1) the bringing of an indictment or information charging a felony, (2) a verdict of guilty, or a plea of guilty or no contest to felony charge(s), and (3) the conviction on any felony or misdemeanor that is committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or—regardless of whether it was committed in relation to the practice of law—felonies and misdemeanors that involve “improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.”

You must report to the State Bar within 30 days of any such conviction, verdict, or plea. The State Bar has a form for reporting a criminal charge or conviction. That form is available here: http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. You can also report by updating your online State Bar profile at https://www.calbar.ca.gov/Attorneys/MyStateBarProfile.aspx

In addition, Business & Professions Code 6068(o) requires attorneys to self-report to the State Bar of California:

  • An entry of judgment in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
  • The imposition of judicial sanctions ($1,000 or more);
  • The reversal of a judgment based on misconduct, gross incompetence or willful misrepresentation;
  • If three or more lawsuits dealing with malpractice issues are filed against him or her in a 12-month period;
  • Imposition of discipline by a professional or occupational disciplinary agency or licensing board (such as Bar Associations in other states, the SEC, etc.) (Note: this includes claims against any firm in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has already been reported by the law firm or corporation);
  • If not in possession of professional liability insurance, self-report any settlement, judgment, or arbitration award as specified by statute;
  • And, when employing a disbarred, suspended or involuntarily enrolled inactive lawyer, an attorney must comply with restrictions and inform the State Bar and clients.

The State Bar provides forms for complying with the above-described requirements, available at http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. For questions, contact the Member Services Center, 1-888-800-3400.

A Second DUI and a State Bar License

A second DUI is  a bigger problem.  For a second DUI conviction, the bar has authority to revoke or take other action based upon a substance abuse problem.

Rehabilitation is important if there are any prior DUIs, to show fitness of the license holder.   It’s helpful to effectively build a persuasive affirmative record of rehabilitation. If there is not rehabilitation, then you would need to acknowledge a substance-abuse problem, and cooperate with the bar to take their steps for rehabilitation. You will have to show that you are dealing responsibly and effectively with an alcohol problem now, under the observation and supervision and direction of the State.

All California licensing agencies are statutorily charged with the obligation to focus on the issue of rehabilitation. Rehabilitation is the factor that determines whether an offender will transgress again after licensure. And that is the focus and point of view of State licensing agencies. Licensing is considered to be a privilege authorized by the state, not a right, and the privilege will not be authorized where there are legitimate issues of professional integrity and competence because those issues pose genuine risks to the welfare of the public.

A strong and impeccable showing of rehabilitation is the ONLY meaningful evidence that can overcome licensing agency concerns about putting the public at risk, and would show a pattern of responsible conduct. 

DUI and a State Bar License – will an expungement help?

An expungement in California is a petition to have the court dismiss your charges from the court record, and thus change your criminal record.  It does not change your driving record, however, and part of the expungement laws in California, Penal Code section 1203.4, instructs that even with an expungement a licensee still must disclose the conviction to any state or federal licensing agency.  That includes a State Bar license.

DUI and a State Bar License – will a DUI prevent you from being licensed?

For the reasons having to do with the conviction section above, probably not.  But you should meet with a licensing attorney to go over the facts of your conviction, and anything else on your record.  And disclosure is a key – failure to disclose, by itself, will cause your application to be denied.

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