kanBARoo Court. 42nd Installment. The State Bar's Abuse of "Willfulness" to Assert Strict Ethical Liability

Strict ethical liability, the State Bar's central dogma, is also the State Bar's greatest potential vulnerability, usually ignored. By strict ethical liability, I mean the doctrine that no mens rea requirement informs professional discipline, so lawyers are objectively culpable for State Bar infractions. The conduct's "willfulness" conditions most State Bar disciplinary standards, facially refuting strict ethical liability, but the State Bar trial counsel do not intend the doctrine for formal espousal. Instead, the State Bar wields the doctrine as rumor and threat to bludgeon respondents outside the court's hearing, and within hearing, to paper the respondent with allegations unsupported by facts proving willfulness. The State Bar ignores willfulness conditions, routinely failing to attempt their proof. To the State Bar, "willfully" means "culpably," adding nothing to the objectivistic requirements of the rules and statutes.

The State Bar stands on the willfulness condition's construal because "willful" is one of the most contentious and indefinite terms used in criminal law, the term's interpretation being statute specific. Since 95% of State Bar cases involve civil attorneys, most respondents hesitate to challenge on the alien concept of willfulness, which deputy trial counsel like to portray as indefinitely malleable. In the rare challenges, moreover, respondents stumbled badly on appeal. (See, for example, Arden v. State Bar (1987) 43 Cal.3d 713.)

The vagaries of "willfulness" need not daunt respondents. The distinctions that vary the term's meaning across statutes are not difficult to understand, only numerous in variety. Despite the nuances, the general meaning always predominates. The predominant meaning is what the Office of the Chief Trial Attorney routinely ignores and is the necessary starting point for understanding willfulness under the State Bar Law. Willfulness comprises what is sometimes termed "general intent" in criminal law. An infraction can satisfy general intent in two ways, purposeful action or knowing disregard. Penal Code section 7, subdivision 1, defines 'willfully,' unless otherwise apparent from the context:

"The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage."

Willfulness also occurs when the defendant purposely disregards a statute.

Willfulness conditions usually are construed to require knowledge of the prohibition, and logic so demands. (People v. Garcia (2001) 25 Cal.4th 744, 752 ["Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed."]) With this logic lesson in mind, it may surprise that the California Supreme Court interprets willful violation of the Rules of Professional Conduct as requiring no knowledge of the rule violated. (See Gassman v. State Bar (1976) 18 Cal.3d 125, 131.) Removing the knowledge requirement from violations of the Rules of Professional Conduct is, nevertheless, rationally justifiable and intelligibly statable. The Rules of Professional Conduct contain a presumption that the attorney knows the rules, because of their ethical character, while the State Bar Law does not presume knowledge of Bus. & Prof. Code, §§ 6000 - 6238. (See See Zitny v. State Bar (1966) 64 Cal.2d 787, 793 ["attorneys are not infallible and cannot at their peril be expected to know all the law."])

If pushed on its construal of willfulness, the State Bar would probably retreat from issues of definition to proof. The Garcia court states, "A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (People v. Garcia, supra, 25 Cal.4th at p. 752) In the State Bar context, the Hearing Department judge might decide from the mere proof of notice that respondent knew the prohibitory statute or court order. Presumably, the manner of notice bears on the willfulness inference. But where the State Bar can show no prior notice, the State Bar's indifference to charges' mens rea elements should permit an astute respondent to defeat the typical notice of disciplinary charges.

(See also, 49th Installment. "Willfulness" Made Precise)