Most prosecutors will negotiate with accused offenders. Obviously, this is done to move the trial court calendar along, eliminate the need to tie up resources that could be used elsewhere, truly not needed when the defendant is willing to change a plea. Even in civil matters, parties negotiate settlements in order to achieve reasonable business outcomes and reduce the cost of litigation.

In at least one civil instance, an insurance company said they will not settle any case, large or small, that everything had to go to trial. This clearly delays the outcomes … and enables the insurance carrier to withhold payment for some time. I’ve not seen any studies about the merits of such activities from the carrier’s perspective. It does, however, frustrate plaintiffs. Frustration without economic benefit is hardly a good business outcome. And the carrier has since reversed this policy.

Now, we have a new version. The State Bar of California has announced that it will refuse to accept “no contest” pleas from lawyers accused of ethics violations. The issue here is not one of criminal liability, but rather of retaining one’s license to practice law. One has to ask what more can be given to the Bar once the lawyer-accused has agreed to take his/her punishment?

The Office of Trial Counsel maintains that accused lawyers are not accepting responsibility for their actions unless they are tried and convicted or accept a guilty plea. That is why they will not accept a nolo contendere plea. Other than civil damages, the effect of a nolo plea is the same … and punishment is no less. Criminal prosecutors understand this. But, the Bar wants its “pound of flesh.” It is questionable whether this is a question of morality.
This is just one more example of the California State Bar’s new adversarial attitude toward its members … Although the legislative directive to the State Bar is that its primary, if not sole, function is to protect the public (not help its members who pay all the expenses of the Bar), one has to wonder how the public is being better helped by this new approach.