By Ian Ross

On September 23, 2021, the State Bar’s Regulation and Discipline (RAD) Committee unanimously approved the circulation for public comment of an amendment to State Bar Rule of Procedure 2201. The RAD Committee requests public comment on the amendment to State Bar Rule of Procedure 2201 in accordance with the Bagley-Keene Open Meeting Act, Government Code section 11120. Many of the amendments to Rule 2201 were originally proposed at the Committee’s previous meeting on July 22, 2021, and circulated for public comment, but the Committee determined that a broader set of revisions were necessary. The current amendments to Rule 2201 also come after the State Bar named George S. Cardona as the new Chief Trial Counsel on August 27, 2021.

Under the current rules, Title III Division II Chapter 2 of the California State Bar Rules of Procedure, Rule 2201 sets the grounds for mandatory and discretionary recusals of the Chief Trial Counsel (CTC) (Rule 2201 (a) and (b)). When the CTC determines that recusal is appropriate, the inquiry or complaint is referred to the Special Deputy Trial Counsel Administrator (Administrator). (Rule 2201(c)(1)). The Administrator then determines whether to close the matter or appoint a Special Deputy Trial Counsel (SDTC) to investigate the matter (Rule 2201(c)(2) and (3)). The current version of Rule 2201 states that the Administrator and each SDTC act in place of the CTC regarding any inquiry, complaint or other matter and any resulting investigation or prosecution. (Rule 2201(e)(1)).

The proposed amendments kept seven revisions proposed and circulated after the RAD Committee’s July meeting. First, paragraphs were revised to vest the CTC’s power and duties solely in the Administrator. This revision was proposed to authorize further supervision by the Administrator and to ensure a higher level of consistency in decision-making, settlement, and prosecution. Second, the current amendment would add a new subparagraph that states that both the SDTCs and the Administrator are subject to the RAD Committee’s oversight. Third, the amendment removes provisions that permit the State Bar’s Office of General Counsel to remove the SDTCs or the Administrator for good cause. This revision will only grant the chair of the RAD Committee the authority to remove an SDTC or the Administrator. Fourth, the amendment will require that the Administrator provide a report to the RAD Committee at each of the regularly scheduled meetings. Fifth, the amendment will substitute the word “track” for the word “monitor.” Sixth, the amendment will revise current subparagraph (e)(3) to provide reimbursement of “approved” reasonable expenses. Seventh, the amendment would then update all internal references to the rule paragraphs.

The proposed amendments also suggest three additional revisions to Rule 2201 that were not seen in the July proposal. First, the current proposal will remove a previous provision that required the RAD Committee to establish a compensation rate for the SDTCs and the Administrator. Second, the amendment will revise current subparagraphs (c)(2) and (c)(3) by adding the word “delegee” to provide flexibility to the Administrator to delegate the duties described to an appropriate SDTC. Third, the amendment makes further changes as appropriate to update terminology and internal references.

On November 12, 2021, the deadline for the 45-day public comment period ends.