December 18, 2014

Early Neutral Evaluation Conferences

The State Bar Court Hearing Department Guidelines for Scheduling and Conducting Early Neutral Evaluation Conferences have been updated and streamlined. The Guidelines were revised effective June 20, 2012, in both the Los Angeles and San Francisco venues.


STATE BAR COURT HEARING DEPARTMENT
GUIDELINES FOR SCHEDULING AND CONDUCTING
EARLY NEUTRAL EVALUATION CONFERENCES (ENEC)
RULE 5.30, RULES OF PROCEDURE
Effective June 20, 2012


Scheduling:
  • Use court-approved form and submit to proper venue by facsimile or mail.  All requests must be on the latest version of the form dated June 20, 2012.  Requests on any other form will be returned and accompanied by a request to resubmit the new form.
  • Supply multiple dates agreed to by opposing counsel. In order to schedule the ENEC within 15 days, the court may not be able to accommodate requested dates.
  • Case Administrators will notify requestor of the assigned ENEC Judge and ENEC date.
  • Requestor to notify opposing counsel - no written notice will be given by the court.
  • The parties may not request a specific ENEC Judge.
Preparation for the conference:
  • In addition to the required draft notice of disciplinary charges, the court requests the parties submit a brief statement of the case, including their settlement positions.
  • Documents should be submitted as early as possible, but no later than three (3) court days in advance of the ENEC. The ENEC may be rescheduled if the ENEC Judge is not provided sufficient time to review the material.
  • In order to increase productivity, the court encourages the parties to exchange documents prior to the ENEC.
Conduct of the Conference:
  • The parties should be prepared to discuss the facts, the proposed charges and the potential for the imposition of discipline.
  • The ENEC Judge will address settlement of the case, and therefore, the parties should be prepared to discuss settlement positions and should have settlement authority.
  • In camera inspection of documents is permissible. While this may be necessary in some cases, the final evaluation may be based on information only available to one side which may lessen the opportunity for settlement.
Conclusion:
  • If a settlement is reached, all material terms should be agreed upon at the ENEC. If a stipulation is to be filed, it should be directed to the ENEC Judge. If the stipulation is not filed by an agreed upon date, the ENEC Judge may schedule a continued ENEC prior to the filing of the notice of disciplinary charges.
  • If no settlement is reached, the Office of Chief Trial Counsel may file a notice of disciplinary charges and should advise the opposing counsel when it will be filed.
  • More than one ENEC may be necessary. Upon request of the parties, the ENEC Judge may permit a short continuance - the 15 day period set forth in Rule 5.30(A) will not apply.
  • The ENEC Judge will not be the Trial Judge unless both parties consent. The ENEC Judge may serve as the Settlement Judge.

Excerpt from the Rules of Procedure of the State Bar of California:

RULE 5.30 PRE-FILING, EARLY NEUTRAL EVALUATION CONFERENCE.

(A) Early Neutral Evaluation Conference. If the Office of the Chief Trial Counsel and the member cannot agree on the resolution or disposition of a matter before disciplinary charges are filed, either party may request an Early Neutral Evaluation Conference. A State Bar Court hearing judge must conduct the conference within 15 days of the request.

(B) Judicial Evaluation. At the conference, the judge must give the parties an oral evaluation of the facts and charges and the potential for imposing discipline. If the parties then resolve the matter in a way that requires Court approval, the Office of the Chief Trial Counsel must document the resolution and submit it to the Evaluation judge for approval or rejection.

(C) Evidence. The Office of the Chief Trial Counsel must submit a copy of the draft notice of disciplinary charges to the judge prior to the conference. Each party may submit documents and information to supports its position.

(D) Confidentiality. The conference is confidential. A party may designate any document it submits for in camera inspection only.

(E) Trial Judge. Unless otherwise stipulated by the parties, the Early Neutral Evaluation judge cannot be the trial judge in a later proceeding involving the same facts.