Tooby's California Post-Conviction Relief for Immigrants

(A)

Bar Discipline.  Sometimes there are misapprehensions concerning the consequences to counsel of a finding of ineffective assistance.  Counsel who simply makes a mistake does not incur potential disciplinary liability, at least in California.[162]

            A simple mistake is not cause for disciplinary action before the State Bar.  Cal Rules of Professional Conduct, Rule 3-110, provides that a “member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.”  Therefore, a single instance of accidental ineffective assistance of counsel that is not intentional or reckless cannot constitute grounds for discipline.[163]    “We have repeatedly held that negligent legal representation, even that amounting to legal malpractice, does not establish a rule 3-110(A) violation.”[164]    In Call v. State Bar,[165] the Supreme Court held that negligence of an attorney is not a proper ground for disciplinary action.  The Court held that errors resulting from even gross negligence and carelessness are not listed as grounds for discipline “unless the conduct involves moral turpitude or amounts to a violation of the attorney’s oath or of his duties as an attorney.”[166] 

            State law sometimes requires a court to report to the State Bar whenever a criminal conviction is reversed on ground of ineffective assistance of counsel.[167]  No case has been found, however, at least in California, in which any disciplinary action has been taken on the basis of such a mistake alone.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 4.52 (2007).

            This is as it should be.

            Trial attorneys make thousands of decisions in the course of defending a case, and some are bound to be erroneous.  Some of the errors may wind up having a very serious impact upon the client.

            While the client should not be made to suffer for counsel’s mistakes, it would be inappropriate for counsel to suffer discipline on the basis of an innocent mistake, however serious.

[162] Investigation of this issue, by communication with an executive who used to run the California State Bar Disciplinary System for a number of years, has disclosed that no disciplinary action has ever been taken against an attorney grounded solely upon a report of a finding of ineffective counsel, and that such findings are not regularly reported in any event.

[163] See In re Torres (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr 138, 149.

[164] In the Matter of Riley (Review Dept. 1994) 3 Cal. State Car Ct. Rptr 91, 113, and cases there cited.

[165] Call v. State Bar (1955) 45 Cal. 2d 104.

[166] Id. at 109.

[167] For example, California Business & Prof. Code § 6086.7 does require a court which reverses a judgment on grounds of ineffective counsel, to report its action to the State Bar.  Although there is a great distance between a mistake, even a serious one, and any realistic grounds for discipline.  It is quite rare for an attorney even to be reported to the State Bar.  In People v. Shelley, 156 Cal.App.3d 521, 202 Cal.Rptr. 874, 881 n.1 (1984), in which trial counsel sat mute during trial in protest against the trial court’s order throwing his client in custody during trial, the court reported the IAC reversal to the State Bar.  The statute, however, does not even suggest that it would be appropriate to initiate disciplinary action in connection with an IAC reversal.