UNITED STATES BANKRUPTCY COURT

Eastern District of California

Honorable Ronald H. Sargis

Bankruptcy Judge
Sacramento, California

May 20, 2010 at 10:30 a.m.

1. 10-21656-E-11 RICKIE WALKER HEARING - OBJECTION

MLA #3 TO CLAIMS OF CITIBANK, N.A.
4-6-10 [52]

Local Rule 3007-1(c)(1) Motion - No Opposition Filed.

Proper Notice Provided. The Proof of Service filed on April 6, 2010, states
that the Motion and supporting pleadings were served on respondent creditor,
other parties in interest, and Office of the United States Trustee.

The court notes that the moving party filed the declaration and exhibits in
this matter as one document. This is not the practice in the Bankruptcy Court.
“Motions, notices, objections, responses, replies, declarations, affidavits,
other documentary evidence, memoranda of points and authorities, other
supporting documents, proofs of service, and related pleadings shall be filed
as separate documents.” Revised Guidelines for the Preparation of Documents,
¶(3)(a). Counsel is reminded of the court’s expectation that documents filed
with this court comply with the Revised Guidelines for the Preparation of
Documents in Appendix II of the Local Rules and that attorneys practicing in
federal court comply with the Federal Rules of Civil Procedure and the Federal
Rules of Bankruptcy Procedure.

NOTICE
FAILURE TO COMPLY WITH THE GUIDELINES AND
FILING PLEADINGS WHICH DO NOT COMPLY WITH THE
FEDERAL RULES OF CIVIL PROCEDURE SHALL RESULT
IN THE MOTION BEING SUMMARILY DISMISSED WITHOUT PREJUDICE.
Tentative Ruling: This Objection to a Proof of Claim has been set for hearing
on the notice required by Local Bankruptcy Rule 3007-1(c)(1). The failure of
the Trustee and the respondent creditor to file written opposition at least 14
days prior to the hearing as required by Local Bankruptcy Rule 3007-1(c)(1)(I)
is considered as consent to the granting of the motion. Cf. Ghazali v. Moran,
46 F.3d 52, 53 (9th Cir. 1995).

The court’s tentative decision is to sustain the Objection to the Proof of

Claim and disallow the claim in its entirety with leave for the owner of the
promissory note to file a claim by June 18, 2010. Oral argument may be
presented by the parties at the scheduled hearing, where the parties shall
address the issues identified in this tentative ruling and such other issues
as are necessary and appropriate to the court’s resolution of the matter. If

M ay 20, 2010 at 10:30 a.m.

- Page 1 of 28 -
the court’s tentative ruling becomes its final ruling, the court will make the
following findings of fact and conclusions of law:

The Proof of Claim at issue, listed as claim number 5 on the court’s official
claims registry, asserts a $1,320,650.52 secured claim. The Debtor objects to
the Claim on the basis that the claimant, Citibank, N.A., did not provided any
evidence that Citibank has the authority to bring the claim, as required by
Federal Rule of Bankruptcy Procedure 3001(c), rendering the claim facially
defective.

The court’s review of the claim shows that the Deed of Trust purports to have
been assigned to Citibank, N.A. by Mortgage Electronic Registration Systems,
Inc. as nominee for Bayrock Mortgage Corporation on March 5, 2010. (Proof of
Claim No. 5 p.36-37, Mar. 19, 2010.) Debtor contends that this does not
establish that Citibank is the owner of the underling promissory note since the
assignor, Mortgage Electronic Registration Systems, Inc. (“MERS”), had no
interest in the note to transfer. Debtors loan was originated by Bayrock
Mortgage Corporation and no evidence of the current owner of the promissory
note is attached to the proof of claim. It is well established law in the
Ninth Circuit that the assignment of a trust deed does not assign the
underlying promissory note and right to be paid, and that the security interest
is incident of the debt. 4 WITKIN SUMMARY OF CALIFORNIA LAW , SECURED TRANSACTIONS IN REAL
PROPERTY §105 (10th ed).

MERS AND CITIBANK ARE NOT THE REAL PARTIES IN INTEREST

Under California law, to perfect the transfer of mortgage paper as collateral

the owner should physically deliver the note to the transferee. Bear v. Golden
Plan of California, Inc., 829 F.2d 705, 709 (9th Cir. 1986). Without physical
transfer, the sale of the note could be invalid as a fraudulent conveyance,
Cal. Civ. Code §3440, or as unperfected, Cal. Com. Code §§9313-9314. See ROGER
BERNHARDT , CALIFORNIA MORTGAGES AND DEEDS OF TRUSTS , AND FORECLOSURE LITIGATION §1.26 (4th
ed. 2009). The note here specifically identified the party to whom it was
payable, Bayrock Mortgage Corporation, and the note therefore cannot be
transferred unless the note is endorsed. See Cal. Com. Code §§3109, 3201, 3203,
3204. The attachments to the claim do not establish that Bayrock Mortgage
Corporation endorsed and sold the note to any other party.

TRANSFER OF AN INTEREST IN THE DEED OF TRUST ALONE IS VOID

MERS acted only as a “nominee” for Bayrock Mortgage under the Deed of Trust.
Since no evidence has been offered that the promissory note has been
transferred, MERS could only transfer what ever interest it had in the Deed of
Trust. However, the promissory note and the Deed of Trust are inseparable.
“The note and the mortgage are inseparable; the former as essential, the later
as an incident. An assignment of the note carries the mortgage with it, while
an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S.
271, 274 (1872); accord Henley v. Hotaling, 41 Cal. 22, 28 (1871); Seidell v.
Tuxedo Land Co., 216 Cal. 165, 170 (1932); Cal. Civ. Code §2936. Therefore,
if on party receives the note an another receives the deed of trust, the holder
of the note prevails regardless of the order in which the interests were
transferred. Adler v. Sargent, 109 Cal. 42, 49-50 (1895).

M ay 20, 2010 at 10:30 a.m.

- Page 2 of 28 -
Further, several courts have acknowledged that MERS is not the owner of the
underlying note and therefore could not transfer the note, the beneficial
interest in the deed of trust, or foreclose upon the property secured by the
deed. See In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007);
In re Vargas, 396 B.R. 511, 520 (Bankr. C.D. Cal. 2008); Landmark Nat’l Bank
v. Kesler, 216 P.3d 158 (Kan. 2009); LaSalle Bank v. Lamy, 824 N.Y.S.2d 769
(N.Y. Sup. Ct. 2006). Since no evidence of MERS’ ownership of the underlying
note has been offered, and other courts have concluded that MERS does not own
the underlying notes, this court is convinced that MERS had no interest it
could transfer to Citibank.

Since MERS did not own the underling note, it could not transfer the beneficial
interest of the Deed of Trust to another. Any attempt to transfer the
beneficial interest of a trust deed with out ownership of the underlying note
is void under California law. Therefore Citibank has not established that it
is entitled to assert a claim in this case.

MULTIPLE CLAIMS TO THE BENEFICIAL INTEREST IN THE DEED OF TRUST AND OWNERSHIP
OF PROMISSORY NOTE SECURED THEREBY

Debtor also points out that four separate entities have claimed beneficial
ownership of the deed of trust. (Obj. to Claim 3-5, Apr. 6, 2010.) The true
owner of the underling promissory note needs to step forward to settle the
cloud that has been created surrounding the relevant parties rights and
interests under the trust deed.

DECISION

11 U.S.C. §502(a) provides that a claim supported by a Proof of Claim is

allowed unless a party in interest objects. Once an objection has been filed,
the court may determine the amount of the claim after a noticed hearing. 11
U.S.C. §502(b). Since the claimant, Citibank, has not established that it is
the owner of the promissory note secured by the trust deed, Citibank is unable
to assert a claim for payment in this case. The objection is sustained and
Claim Number 5 on the court’s official register is disallowed in its entirety,
with leave for the owner of the promissory note to file a claim in this case
by June 18, 2010.

The court disallowing the proof of claim does not alter or modify the trust
deed or the fact that someone has an interest in the property which can be
subject thereto. The order disallowing the proof of claim shall expressly so
provide.

The court shall issue a minute order consistent with this ruling.

M ay 20, 2010 at 10:30 a.m.

- Page 3 of 28 -
2. 09-33674-E-7 JACQUELINE DUREL HEARING - ORDER
TO SHOW CAUSE RE DISMISSAL
OF CASE OR IMPOSITION OF
SANCTIONS
4-28-10 [31]

Tentative Ruling: The Order to Show Cause was issued due to the Failure to
attend the scheduled Meeting of Creditors as required by 11 U.S.C. §343. The
court’s docket reflects that the Meeting of Creditors has not been concluded.

The court’s tentative decision is to continue the hearing on the Order to Show
Cause to June 24, 2010, at 10:30 a.m. to permit the Debtor to attend the
continued Meeting of Creditors on June 10, 2010.

Debtor files a reply indicating that she has been incapacitated by a medical
condition since January 20, 2010. However, the court’s docket reflects that
Debtor appeared at the March 30, 2010, Meeting of Creditors, but missed the
April 8 and April 27, 2010, meetings. This directly contradicts the statements
provided by the Debtor.

Debtor also argues that the court could administer the case without her
presence under Federal Rule of Bankruptcy Procedure 1016. Rule 1016 provides
that the death or incompetency of the debtor shall not abate a case under
Chapter 7. Here, however, Debtor failed to show that her hospitalization and
temporary incapacitation rendered her incompetent under California law. Cf. In
re Moss, 239 B.R. 537 (Bankr. W.D. Mo. 1999). Moreover, even if the Debtor
were of limited competence, attendance at the Meeting of Creditors is required.
11 U.S.C. §343; 9-1016 Collier on Bankruptcy P 1016.02 (Lexis 2010).

However, given Debtor’s medical condition, the court will continue this hearing
to June 24, 2010 at 10:30 a.m. to permit the Debtor to attend the continued
Meeting of Creditors on June 10, 2010.

The court shall issue a minute order consistent with this ruling.

3. 09-29276-E-7 RODELLO/MICHELLE FLORES HEARING - ORDER

TO SHOW CAUSE RE DISMISSAL
OF CASE OR IMPOSITION OF
SANCTIONS
04-09-10 [48]

Final Ruling: The Order to Show Cause was issued due to the Debtors’ failure
to file Form 22A, the Chapter 7 Means Test. The court’s docket reflects that
the Means Test was filed on April 19, 2010.

The Order to Show Cause is discharged. No appearance required.

The documents having been filed, the Order to Show Cause is discharged.

The court shall issue a minute order consistent with this ruling.

M ay 20, 2010 at 10:30 a.m.

- Page 4 of 28 -
4. 10-25988-E-7 JENNIE CHIENG HEARING - MOTION
DNL #2 TO DETERMINE EXCESSIVE PAYMENT
TO DEBTOR'S COUNSEL
4-15-10 [30]

Local Rule 9014-1(f)(1) Motion – Opposition Filed.

Proper Notice Provided. The Proof of Service filed on April 15, 2010, and
supplemented on April 21, 2010, to correct the time of the hearing, states that
the Motion and supporting pleadings were served on Debtor, Debtor’s Attorney,
Chapter 7 Trustee, and other parties in interest.

Tentative Ruling: The Motion to Determine Excessive Payment to Debtor’s Counsel

has been set for hearing on the notice required by Local Bankruptcy Rule 9014-
1(f)(1). The Debtor having filed an opposition, the court will address the
merits of the motion.

The court’s tentative decision is to grant the Motion to Determine Excessive

Payment to Debtor's Counsel and order Debtor’s Counsel to disburse $2,200.00
of the pre-petition retainer to the Chapter 7 Trustee. Oral argument may be
presented by the parties at the scheduled hearing, where the parties shall
address the issues identified in this tentative ruling and such other issues
as are necessary and appropriate to the court’s resolution of the matter. If
the court’s tentative ruling becomes its final ruling, the court will make the
following findings of fact and conclusions of law:

MOTION TO DETERMINE EXCESSIVE PAYMENT

The Chapter 7 Trustee seeks an order requiring the return of Debtor’s $5,000.00
pre-petition payment to her attorney as an excessive fee for the Chapter 7
bankruptcy case. The case was originally filed as a Chapter 13 case, and at
the time of filing the Statement of Financial Affairs, Chapter 13 Plan,
Schedules I and J, and From 22C (Means Test) were not filed with the court.
These required pleadings were filed on April 8, 2010, in conjunction with the
Debtor’s election to convert this case to one under Chapter 7.

When the Debtor filed bankruptcy she was operating the business known as Sub
Express, located at 4301 Truxel Road, Sacramento, California. The Movant
directs the court to the Debtor’s Schedules I and J in this case, showing
current income of $7,789.51 a month and current expenses of $10,460.53, for a
monthly net loss of $2,671.02.

The Trustee alleges that much of the work being done post-petition for the
Debtor was legal work for her to retain her business through the Chapter 7
case, and not for prosecution of a Chapter 13 Plan.

The Trustee, as successor to the Debtor, asserts the right to cancel any pre-
petition contract of the Debtor, including that with her counsel for services
relating to the $5,000.00 retainer which counsel for the Debtor received. 11
U.S.C. §329(b)(1)(A). The Trustee also asserts the right to recover the

M ay 20, 2010 at 10:30 a.m.

- Page 5 of 28 -
$5,000.00 retainer as provided in Rule 2017(a), Federal Rules of Bankruptcy
Procedure.

The Trustee argues that it was clear that the present bankruptcy proceeds had
to result in a Chapter 7, that the fees received by counsel for the Debtor are
well in excess of reasonable fees for a Chapter 7 case, and that counsel for
the Debtor should disgorge the entire $5,000.00 retainer paid to him.

The Debtor has filed an opposition to the Motion and describes the legal
services and strategy as follows:

— The initial consultation with the Debtor took approximately 2 hours.

— Debtor filed the Chapter 13 case to delay a pending foreclosure, and filed
under Chapter 13 because she could delay the foreclosure and stay in possession
of her home longer than if she started with a Chapter 7 filing.

— The Debtor desired to maintain her restaurant, and believed it was

profitable, but did not have the financial information when she was faced with
having to file bankruptcy to stay the pending foreclosure sale.

— The Debtor’s intake appointment occurred on March 10, 2010, and the
bankruptcy was filed on March 11, 2010, less than one-hour before the scheduled
foreclosure sale.

— The Debtor provided the financial information to Debtor’s counsel on March

24, 2010, which reflected a negative financial condition, and scheduled an
appointment for March 29, 2010, with Debtor’s counsel to consider her options
on how to proceed.

— On March 29, 2010, counsel for the Debtor and the Debtor met for
approximately 2 hours.

— On April 8, 2010, the case was converted to one under Chapter 7.

— After April 8, 2010, counsel for the Debtor addressed post-Chapter 7 issues
concerning the Debtor retaining her business and having the Trustee abandon the
business assets to the Debtor. On April 29, 2010, the abandonment was approved
by the court. (The court notes that counsel for the Trustee appeared at the
hearing to state that the Trustee had no opposition to the requested
abandonment).

REAL ISSUES BEFORE THE COURT

The Trustee and Debtor expend time and argument over the strategy and tactics
of the Debtor in trying to maintain her business and get it abandoned by the
Chapter 13 Trustee. The court appreciates that there is an intricate ballet
which occurs in Chapter 7 cases in which the debtor is a sole proprietor and
has a business of no intrinsic value for a trustee. This ballet requires
debtor’s counsel to move quickly to protect the interests of his or her client,
as well as to move the case forward so as not to expose the Chapter 7 trustee
to liability for an operating business in the Chapter 7 Estate which is not
under the Trustee’s control.

M ay 20, 2010 at 10:30 a.m.

- Page 6 of 28 -
What the Trustee has presented to the court is that Debtor’s counsel has
received a retainer of $5,000.00, which such counsel intended to have approved
as a “no-look” business Chapter 13 fees pursuant to General Order 05-03,
Paragraph 4, for Chapter 13 cases in this District. Such fees are received,
and held by counsel for the Debtor, as a retainer subject to the jurisdiction
of the court and confirmation of the Chapter 13 Plan.

Though counsel for the Debtor generates a contract with a debtor client stating
that the $5,000.00 retainer is non-refundable, fees to be paid counsel for
legal services provided to a debtor are subject to review and approval by this
court. As stated by the Trustee, and reflected in various provisions of the
Bankruptcy Code, the financial dealings between a debtor and his/her counsel
are subject to close review by the bankruptcy court, even in the situation
where the transaction may not be subject to review under state law. An example
is 11 U.S.C. §502(b)(4) which subjects any claim of an attorney for the debtor
subject to disallowance if it exceeds the reasonable value of the services, as
a matter of bankruptcy law. An attorney cannot insulate himself from court
review or divert pre-petition assets of the debtor by characterizing them as
non-refundable fees paid to the attorney for future services.

Counsel is entitled to paid the reasonable fees for filing the bankruptcy case
and work done up to the time of conversion from the pre-petition retainer.
From the pleadings filed, one method could be for the court to identified the
work done by counsel for the Debtor for which fees may be allowed and allocate
reasonable time. By this method the court could conclude that the following
time could reasonably be used to compute the reasonable fees in this case:

Pre-Petition Intake 2.00 Hours

Filing Chapter 13 Case 1.00 Hour

Review of Financial Information

to complete Schedules 1.00 Hour

Meeting with Debtor re Negative

Financial Information 2.00 Hours

Completing Schedules for

Chapter 7 Case 1.00 Hours

Election to Convert 0.40 Hours

Time for 341 Meeting 1.00 Hour

This represents 8.40 hours of time. If the court accepts an hourly rate of
$365 an hour, that would equate to $3,066.00, which may not be unreasonable in
handling a more complicated business Chapter 7 case.

However, the court does not conclude that a strict hours multiplied by
counsel’s hourly rate is appropriate in this case. First, the court notes that
not all of the time to be billed the client is for counsel, but includes time
for counsel’s support staff. The court also notes that the parties have,
unfortunately, spent time (and money) arguing irrelevant points and making
personal attacks against the other. Both parties have failed to provide the

M ay 20, 2010 at 10:30 a.m.

- Page 7 of 28 -
court with any analysis of what they compute the reasonable, and allowable fees
to be in this case for which no Chapter 13 Plan was confirmed.

The court finds that $2,800 represents reasonable fees, inclusive of all costs
and expenses, in this case that counsel for the Debtor should reasonably be
expect to be paid from the $5,000.00 retainer received to handle the Chapter
13 case through confirmation. These reasonable fees are determined based upon
a reasonable hourly rate, determined to be $350 an hour multiplied by 8 hours
in this case.

Counsel for the Debtor cannot reasonably believe that he should be paid for
post-Chapter 7 conversion work done for the Debtor in retaining her business.
Such post-Chapter 7 work is paid for by the Debtor from her post-Chapter 7
assets. When the case was filed the retainer remained property of the Estate,
subject to the attorneys’ lien for fees as determined reasonable by the court.

For the convenience of the parties and the court, the following excerpts from
the General Order currently governing Chapter 13 cases and the Guideline for
Attorneys’ Fees in Chapter 13 Cases applicable to the instant case are as
follows (highlights added by court):

GENERAL ORDER 05-03

As Amended by General Order 08-02

Paragraph 4. Attorney Representation and Attorneys’ Fees

(c) Compensation paid to attorneys for the representation

of debtors shall be determined according to the Guidelines for
Payment of Attorneys’ Fees in Chapter 13 Cases or, when the
attorney elects not to comply with the Guidelines for Payment of
Attorneys’ Fees in Chapter 13 Cases, sections 329 and 330 of the
Bankruptcy Code, FRBP 2002, 2016, and 2017, and other applicable
authority.

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF CAliFORNIA

GUIDELINES FOR PAYMENT OF ATTORNEYS' FEES IN CHAPTER 13 CASES

(Effective in cases filed on or after October 17, 2005)

The following are Guidelines for the circumstances under which the
court will, as part of the chapter 13 plan confirmation process,
approve fees of attorneys representing chapter 13 debtors.

An attorney may decline to seek approval of compensation pursuant

to these Guidelines. If an attorney so declines, his or her
compensation shall be disclosed, reviewed. and approved in
accordance with applicable authority including, without limitation,
11 U.S.C. §§ 329 and 330, Fed. R. Bankr. P. 2002, 2016, and 2017.

M ay 20, 2010 at 10:30 a.m.

- Page 8 of 28 -
 Alternatively, attorneys may have their fees approved and paid as
part of the chapter 13 plan confirmation process if they comply with
the following Guidelines.

1. Counsel may seek approval for fees in the order confirming

the plan up to the amounts set forth in Paragraph 2 without filing
a detailed application if:

a) Counsel has filed an executed copy of the “Rights and

Responsibilities of Chapter 13 Debtors and Their
Attorney,” attached hereto; and

b) No objection to the requested fees has been raised.

2. The maximum fee which can be approved through the procedure

described in Paragraph 1 is: $3,500 in nonbusiness cases and $5,000
in business cases.

3. If counsel does not wish to obtain approval of fees in

accordance with these Guidelines, or if an executed copy of the
“Rights and Responsibilities of Chapter 13 Debtors and Their
Attorneys” is not filed, or if counsel requests fees in excess of
the amounts in Paragraph 2, or if there is an objection, fees will
not be automatically approved upon plan confirmation pursuant to
these Guidelines. In such cases, counsel must deposit all advance
payment of post-petition fees in trust, must apply for all fees, and
shall comply with 11 U.S.C. §§ 329 and 330. and Fed. R. Bankr. P.
2002, 2016, and 2017...

6. If an attorney has elected to be compensated pursuant to

these guides but the case is dismissed prior to confirmation of a
plan, absent a contrary order, the trustee shall pay to the
attorney to the extent funds are available an administrative
claim equal to 50% of the total fee the debtor agreed to pay less
any pre-petition retainer. The attorney shall not collect,
receive, or demand additional fees from the debtor unless
authorized by the court.

Counsel for the Debtor expresses concern that if he is required to disburse

to the Trustee any portion of the pre-petition retainer to which he is not
entitled because the case was properly converted to a Chapter 7 case puts
his Bankruptcy Specialist Certification at risk. Counsel states in the
opposition,

It should be noted that this motion places Mr. Fraley’s

Specialist Certification at risk as any disgorgement that is
$1,000.00 or more requires the attorney to notify the State Bar
Board of Legal Specialization within 30 days.

The court first notes that if “disgorgement” was proper, a requirement that
it be reported to the State Bar or that such reporting could have a negative
consequence to counsel is not a basis for not following proper bankruptcy
law and debtor counsel receiving payment of the reasonable fees to which he

M ay 20, 2010 at 10:30 a.m.

- Page 9 of 28 -
or she is entitled. In making this argument, counsel for the Debtor does
not cite the court to any authority for this argument. In making arguments,
all counsel should clearly cite the authority for any such arguments, or
risk that the court will summarily reject arguments that materialize out of
thin air.

Attached to this decision are copies of the State Bar Standards For
Certification and Recertification in Bankruptcy Law and Rules Governing the
State Bar of California Program for Certifying Legal Specialists, which the
court obtained from the California State Bar Web Page. The only reference
to amounts over $1,000.00 being reported to the State Bar by a legal
specialist are for sanctions (other than discovery) which are entered
against the specialist. Rules Governing The State Bar of California Program
for Certifying Legal Specialists, Section 9.3.6.

Based on all of the information available, this concern (which appears to be

made out of whole-cloth) by counsel for the Debtor is ill-founded. No
sanctions are requested by, and no sanctions are being ordered by the court.
The court is not ordering that fees be “disgorged,” but that counsel for the
Debtor disburse $2,200.00 of the pre-petition retainer he received to the
Trustee.

The court shall issue a minute order consistent with this ruling.

M ay 20, 2010 at 10:30 a.m.

- Page 10 of 28 -
 APPENDIX TO
10-25988-E-7JENNIE CHIENG
DNL #2

The Standards must be read in conjunction with the Rules Governing the State Bar of California Program for
Certifying Legal Specialists, which govern the Program requirements.

THE STANDARDS FOR CERTIFICATION AND RECERTIFICATION

IN BANKRUPTCY LAW
(last revised effective 5/16/08)

1.0 DEFINITION

Bankruptcy law is the practice of law under the United States Bankruptcy Code (11 U.S.C. §101, et seq.) ("Code").
It includes, but is not limited to, representation of debtors, creditors, trustees, committees, and all other interested
parties under the Code.

2.0 TASK REQUIREMENT FOR CERTIFICATION

An applicant must demonstrate that, within the five years immediately preceding submission of the written
application, he or she has been substantially involved in the practice of bankruptcy law. Substantial involvement in
the area of bankruptcy law would be shown if he or she had principal responsibility for representation of, and has
personally appeared on behalf of, a client or clients in 100 or more chapter 7, 11, 12, or 13 bankruptcy cases,
contested matters, and/or adversary proceedings under the Code.

3.0 EDUCATIONAL REQUIREMENT FOR CERTIFICATION

An applicant must show that, within the three years immediately preceding the application for certification, he or she
has completed not less than 45 hours of approved educational activities relevant to bankruptcy law.

4.0 INDEPENDENT INQUIRY AND REVIEW REQUIREMENT FOR CERTIFICATION

4.1 An applicant shall submit the names and mailing ad-dresses of the following:

4.1.1 Three lawyers who practice in the same geographic area as the applicant, and one judge of the United
States Bankruptcy Court or District Court, chosen by the applicant before whom the applicant has
appeared as an advocate in bankruptcy proceedings within the five years immediately preceding
application; and

4.1.2 Two different opposing counsel in two contested or adversary proceedings con-ducted by the
applicant within the five years immediately preceding application, if any; and

4.1.3 One bankruptcy trustee whom the applicant has represented in a bankruptcy proceeding within the
five years immediately preceding the application; or one bankruptcy trustee or one trustee's attorney
in a case in which the applicant represented the debtor within the five years immediately preceding
application.

M ay 20, 2010 at 10:30 a.m.

- Page 11 of 28 -
 4.2 The Commission may select from among the names of judges and lawyers who practice or preside in the
same geographical area as the applicant for further evaluation of the applicant's proficiency in the prac-tice
of bankruptcy law.

4.3 References may be asked to submit the names of additional references familiar with the applicant's
proficiency.

5.0 TASK REQUIREMENT FOR RECERTIFICATION

An applicant for recertification must show that, during the current five-year certification period, he or she has had
direct and substantial participation in the practice of bankruptcy law. Such showing shall be made by compliance
with the requirements set forth in section 2.0 or, at the discretion of the Commission, by sworn statement that the
applicant has engaged in the practice of bankruptcy law substantially to the same extent as described in the
application for original certification.

6.0 EDUCATIONAL REQUIREMENT FOR RECERTIFICA-TION

An applicant for recertification must show that, during the current five-year certification period, he or she has
completed not less than 60 hours of approved educational activities relevant to bankruptcy law specialists.

7.0 INDEPENDENT INQUIRY AND REVIEW REQUIREMENT FOR RECERTIFICATION

An applicant for recertification shall demonstrate proficiency in bankruptcy law through independent inquiry and
review in the same manner as set forth in section 4.0 for certification.

M ay 20, 2010 at 10:30 a.m.

- Page 12 of 28 -
 RULES GOVERNING THE STATE BAR OF CALIFORNIA
PROGRAM FOR CERTIFYING LEGAL SPECIALISTS
(adopted by the Board of Governors 8/27/94; last revised effective 5/16/08)

1.0 Purpose
3.1.1 On a form provided by the State Bar;
The purpose of the Rules Governing the State Bar of
California Program for Certifying Legal Specialists is 3.1.2 At the designated office of the State Bar;
to establish a program for certifying specialists in
specified areas of law, to identify to the public 3.1.3 In a timely manner;
attorneys who have demonstrated proficiency in the
specialty fields and to encourage attorney competence. 3.1.4 With all the information requested on the
form;

2.0 Definitions 3.1.5 With any supplemental information reques-ted

in addition to that requested on the form; and
2.1 “Applicant” is an attorney applying for
certification or 3.1.6 With the appropriate nonrefundable fee.
recertification as a legal specialist.
3.2 Application for Certification
2.2 “Board” is the California Board of Legal Speciali-
zation. The application for certification shall relate to the
applicant’s demonstration of compliance with the
2.3 “Certified specialist” is an attorney who is requirements and shall be provided to the applicant
currently certified as a legal specialist by the only after the applicant has passed a written
California Board examination. The application must be submitted by
of Legal Specialization. the applicant no later than 18 months after the date of
the administration of the written examination. If the
2.4 “Commission” is an Advisory Commission in a application is not submitted within 18 months after the
specialty field of law. date of the administration of the written examination,
the applicant’s file will be closed. If the applicant
2.5 “Individual standards” are the standards for fails to comply with any of the requirements set forth
certifica- in section 3.1 within 60 days of notice of non-
tion and recertification for each area of law in which compliance, the applicant’s file will be closed.
certification is available. Closing an applicant’s file pursuant to this section
shall not constitute a denial of the application for
2.6 “Program” is the California Program for purposes of these Rules.
Certifying Legal Specialists.
3.3 Duty to Disclose
2.7 “Rules” are these Rules Governing the California
Program for Certifying Legal Specialists. An Applicant or certified specialist shall disclose to
the Board of Legal Specialization in writing, within 30
3.0 Applications for Certification and days of the occurrence, any of the events set forth in
Recertification sections 9.3.2 – 9.3.7.

3.1 In General 3.4 Withdrawal of Application

All applications for certification and recertification All applications for certification and recertification
must be submitted: may be withdrawn in writing by the applicant at any

M ay 20, 2010 at 10:30 a.m.

- Page 13 of 28 -
time prior to final Board action on the application. in these Rules and the individual standards; and

4.0 Eligibility for Certification 4.7 Pay the appropriate fees.

To be eligible to become a certified specialist, an 5.0 Task Requirement

applicant shall:
With the exception of Appellate Law, an applicant
4.1 Have been engaged in the practice of law shall demonstrate that, within the five years
continuously during the five years immediately immediately preceding the application, the applicant
preceding the submission of his or her application for performed the specific tasks set forth in the individual
certification and, in each of those five years, have standards. In the case of Appellate Law, the applicant
practiced law in the area in which certification is may demonstrate completion of some of the task
sought for at least 25% of the time the applicant has requirements, as set forth in the Appellate Law
spent in occupational endeavors. standards, since his or her admission to practice law.
The information required shall be shown initially by
4.2 Be an active member of the State Bar of completing a form. The form may request information
California. concerning the frequency and nature of the
work.
4.2.1 In the case of Workers’ Compensation Law, the
applicant also must be in good standing before the Commissions may accept equivalent activities offered
Workers’ Compensation Appeals Board. by the applicant to fulfill the requirements of this
section.
4.2.2 In the case of Immigration and Nationality
Law, the applicant also must meet the definition of 6.0 Educational Requirement
"attorney" as set forth in 8 CFR 1.1(f) and shall not be
under order of suspension or disbarment by the Board 6.1 Requirement
of Immigration Appeals.
An applicant shall demonstrate that within the three
4.2.3 In the case of Bankruptcy Law, the applicant years immediately preceding the application, the
must also be admitted and in good standing before a applicant completed a minimum of 45 hours of
minimum of one United States District Court within approved educational activities relevant to the field of
the State of California. law in which certification is sought. The specific
educational experi-ence may be further defined in the
4.2.4 In the case of Taxation Law, the applicant shall individual standards.
not currently be suspended or disbarred from
practicing before the Internal Revenue Service. Commissions may accept equivalent educational
4.3 Demonstrate performance of a minimum number experi-ence offered by the applicant to fulfill the
of designated tasks in the particular field of law as requirements of this section.
specified in these Rules and the individual standards;
6.2 Limitations on Alternative Methods to Satisfy
4.4 Demonstrate educational experience in the the Educational Requirement for Certification and
particular field of law, as specified in these Rules and Recertification
the individual standards;
Not more than half of the requirement may be satisfied
4.5 Pass a written examination as specified in these by one or more of the following methods:
Rules;
6.2.1 The writing or editing of published articles or
4.6 Demonstrate proficiency in the specialty area books relating to the field of law in which certification
through independent inquiry and review, as specified or recertification is sought. The hours of credit to be

M ay 20, 2010 at 10:30 a.m.

- Page 14 of 28 -
allowed shall be determined by the Commission after for each subsequent hour of teaching the same
consideration of the amount and quality of the program.
submitted materials;
7.0 Approval of Educational Activities
6.2.2 Teaching a course at an accredited institution of
higher education in the field of law in which Educational activities may be granted approval in one
certification or recertification is sought. The hours of of two ways; 1) the provider of the program has been
credit to be allowed for this endeavor shall be granted Multiple Activity Provider status by the
determined by the Commission based upon appropriate Commission and certifies that the program
information submitted by the applicant as to the satisfies the requirements of section 7.3, or 2) the
amount and quality of professional education individual program is approved by the appropriate
involved; Commission.

6.2.3 Completion of an advanced postgraduate course 7.1 Individual Activity Approval

at an accredited law school that includes education in
the field of law in which certification or recertification Approval extends to all offerings of the same activity,
is sought. The hours of credit to be allowed for this including tapes, within two years of approval of the
endeavor shall be determined by the Commission activity. Once approved for legal specialist credit, the
based upon information submitted by the applicant as activity is automatically approved for MCLE credit.
to the amount and quality of professional education
involved; and 7.2 Approval of Multiple Activity Providers

6.2.4 Self-verified listening to and/or viewing of, a 7.2.1 Approval may be extended in advance to a
complete audio or audio/visual reproduction of an continuing education provider for not more than three
approved program segment and submission of an years for all educational activities presented by the
affidavit certifying thereto. Such tapes must be provider which the provider certifies conform to the
approved for educational credit and listened to or requirements of section 7.3.
viewed within the time period for which they were
approved. 7.2.2 The provider shall demonstrate that, during the
two years immediately preceding its application, the
6.2.5 Self-verified participation in other approved provider has sponsored a minimum of four separate
audiovisual activities, including interactive video and different activities, not including repeated
instruction and activities electronically transmitted presentations, that were approved for legal speciali-
from another location, such as online education. zation credit.

6.3 Calculation of Credit 7.2.3 If certification in the field of law in which

approval is sought has been available for less than six
A credit hour is defined as 60 minutes of attendance, years, the provider shall demonstrate that, during the
computed based on actual time spent in an activity two years immediately preceding its application, the
(actual instruction or speaking time, running time of provider has sponsored a minimum of four separate
tapes, audio or video) in hours to the nearest one- and different activities, not including repeated
quarter hour reported in decimals. presentations, that would have complied with section
7.3.
6.4 Credit for Teaching
7.3 Criteria for Approval of Educational Activities
The instructor of an approved program shall receive
credit at the rate of four hours for every hour of 7.3.1 The content of the activity must be relevant to
teaching of a program in the specialty area in which the specialty or related fields. Special topics required
certification is sought for the first time and one hour for compliance with the State Bar’s MCLE

M ay 20, 2010 at 10:30 a.m.

- Page 15 of 28 -
requirement are not eligible unless specific to the Multiple Activity Providers
specialty field. Activities related to the marketing of
products will not be approved. Upon receipt of a completed application for approval
of an individual educational activity, or approval or
7.3.2 The curriculum must provide a level of renewal of a Multiple Activity Provider, the
education required to achieve or maintain proficient application shall be distributed to the appropriate staff
practice in the specialized area of law. In determining or subcommittee of the Commission. Within 10 days
whether the activity is so designed, the content of the of distribution of the application, the subcommittee
advertising employed by the sponsor will be shall notify staff of the recommended action. If the
considered. subcommittee recommends that the application be
denied, it must refer the application to the full
7.3.3 The instructors must be qualified experts in the Commission, in which case the application is
field in which they are teaching. approved if a majority of the members of the
Commission recommend approval. In the case of
7.3.4 Where the activity is more than one hour in educational activities, approval shall include
length, substantive written materials must be agreement on the number of hours to be offered for
distributed to the participants at or before the activity. credit.

7.4 Requirements for All Providers 7.6 Withdrawal or Denial of Multiple Activity
Provider or Educational Activity
7.4.1 Providers of approved educational activities
shall agree to all of the requirements set out in rule Approval may be withdrawn or denied for reasons
3.502 of Title 3, Division 5, of the Rules of the State including, but not limited to, a determination that the
Bar of California, including any amendments thereto, content of an activity does not comply with the
except that the provider of approved legal requirements of section 7.3 or the provider does not
specialization educational activities shall maintain comply with the requirements of section 7.4.
attendance records for a period of six years, the Approval of an educational activity or Multiple
certificate of attendance shall state the specialty area, Activity Provider must be withdrawn or denied by a
including sub-areas, if applicable, for which credit is majority of the members of the appropriate
approved, and promotional materials shall include the Commission.
area(s) of specialty and the number of hours in each
specialty area, including sub-areas, if applicable, for 7.7 Renewal of Multiple Activity Provider
which credit is being offered. Approval

7.4.2 Promotional materials, if any, must contain Subject to the requirements of section 7.4, the
accurate information as to whether the educational approval of Multiple Activity Provider may be
activity is approved for legal specialization credit or renewed for a period of time specified by the
whether approval is pending. appropriate Commission for all of the educational
activities referred to in sections 6.1 and 6.2.4
7.4.3 In order to ensure quality, each activity shall be presented by such provider which it certifies conform
subject to audit by the Board and the Commission to section 7.3. The renewal of a Multiple Activity
without cost. Provider may be denied if the provider fails to comply
with any of the requirements of these Rules.
7.4.4 An educational activity shall not be advertised
in a manner which is misleading or misrepresentative 8.0 Written Examinations
in any way.
8.1 Purpose
7.5 Procedure for Approval of Individual
Educational Activities and Approval/Renewal of The purpose of the examination is to verify that an
applicant has a basic knowledge of the usual

M ay 20, 2010 at 10:30 a.m.

- Page 16 of 28 -
procedures and substantive law that should be
common to specialists in the field of law. 8.6.2 If increased educational requirements are
imposed as part of the alternative to the examination,
8.2 Place and Time they shall meet the criteria set forth in section 7.3 of
these Rules.
The written examination in each specialty field shall
be conducted at least every other year in northern and 8.6.3 The application fee for certification using the
southern California, and at such other times and places alternative to the examination shall be the same as the
as shall be set by the Board. examination fee.

8.3 Grading 9.0 Independent Inquiry and Review

Written examination grades shall be final in all cases, The appropriate Commission shall conduct an
except where the written examination is subject to independent inquiry and review of each applicant.
reappraisal by a Committee of Reappraisers appointed
by the appropriate Commission. In such cases, the 9.1 References
decision of the Committee of Reappraisers as to
whether the applicant has passed or failed shall be Each applicant shall be required to submit the names
final. of three attorneys or judges to serve as references who
are familiar with the tasks upon which the applicant
8.4 Inspection of Examination Books has relied to satisfy the task requirement, except where
An applicant who fails to pass the examination may, the number and type of references are set forth in the
within two months after the results have been individual specialty standards. Each reference shall be
announced, inspect his or her examination books in asked to submit the names of two additional
such manner and at such place as the Board may references familiar with the applicant’s proficiency.
designate. An applicant who passes the examination The Commission may seek additional references from
shall not be entitled to inspect his or her examination other persons familiar with the tasks described in the
books. individual standards. The references shall be sent a
questionnaire. The references shall not include any
8.5 Passing Grade attorney who is associated with the applicant,
including clients, relatives, current partners,
Except pursuant to sections 3.2 and 16.1, a passing associates, employers or employees of the applicant.
grade shall be valid for 36 months from the date of the
administration of the examination. 9.2 Minimum Number of Favorable References

8.6 Alternative to Written Examination An application shall not be acted upon until a
minimum of five favorable references have been
Subject to the provision of the following, alternative received, except Criminal Law, where a minimum of
requirements to the written examination shall be found eight favorable references are required for action. To
in the individual standards. be considered, the references must also be eligible
pursuant to the criteria set forth in section 9.1 above.
8.6.1 At any time within the two years following the The Commission may, in its discretion, act upon an
effective date of a new specialty, in lieu of passing a application that has been pending for longer than one
written examination, an applicant may verify basic year even if the minimum number of favorable
knowledge of the usual procedures and substantive references has not been received. In appropriate
law common to specialists in the field of law by instances of limitations on the applicant’s practice by
satisfying alternative requirements approved by the reason of geographical location, limited nature of
Board. This option is not available to an applicant practice, or similar reasons, the Commission may, in
who sits for the written examination. its discretion, reduce the number of references
required to a minimum of two persons. If, within 30

M ay 20, 2010 at 10:30 a.m.

- Page 17 of 28 -
days of the mailing of the initial reference forms, five
favorable responses have not been received, the The Commission may only find an applicant to have
applicant shall be so notified and may be requested to not successfully completed independent inquiry and
provide additional references. review on the basis of substantial and credible
information received in the independent inquiry and
9.3 Evaluation Criteria review of the applicant.

The Commission shall consider whether the applicant

has achieved recognition as having a level of
competence indicating proficient performance in
handling the usual matters in the specialty field and 9.4 Negative or Adverse Responses
conforms his or her conduct to the California Rules of
Professional Conduct. Such consideration shall be In the event that two references indicate that the
based on relevant criteria which the Commission applicant does not demonstrate proficiency in the
deems appropriate to take into account prior to making specialty field, or if a serious question is raised
its recommendation to the Board, including: concerning the applicant’s demonstrated proficiency
in the specialty field, further information may be
9.3.1 the applicant’s work product, problem analy-sis, sought. The chair will designate one member of the
and statement of issues and analysis; Commission to investigate significant negative
responses to assure that they are related to proficiency
9.3.2 felony convictions; and not to personality conflicts or other factors
irrelevant to proficiency. The designated member will
9.3.3 final disciplinary actions imposed for make reasonable efforts to contact the source or
professional misconduct by any court or body before sources of negative or adverse comments and to obtain
whom the applicant appears; independent verification of the negative and adverse
comments. The designated member will be the only
9.3.4 resignation from any bar, court or body before person authorized to seek additional information on
whom the applicant appears; behalf of the Commission. Whenever possible, the
Commission will not place continuing and exclusive
9.3.5 three or more judgments of professional reliance on the same sources of information in
negligence filed in a 12-month period; evaluating various applicants from any given
geographic area.
9.3.6 sanctions, other than discovery sanctions, of
$1,000 or more entered against the applicant by any 9.5 Oral Interview
court or body before whom the applicant appears;
9.5.1 The purpose of an oral interview is to provide
9.3.7 findings of contempt by any court or body an applicant with a reasonable opportunity to respond
before whom the applicant appears. to adverse information and to present any additional
information which may support his or her
An applicant or certified specialist shall have a qualifications. It is not a hearing and the applicant is
continuing duty to disclose the foregoing matters as not entitled to have counsel present during the
provided by section 3.3 of these Rules. interview.

In determining whether or not an attorney conforms In the event that a recommendation of not qualified is
his or her conduct to the Rules of Professional being considered, the Advisory Commission or Board
Conduct, the Commission will make an independent shall request an oral interview with the applicant at a
assessment concerning how such conduct bears on an time and place it designates. The oral interview
attorney’s qualification to obtain or maintain should be held only after the Advisory Commission or
certification. Board receives a substantial part of the relevant
information and should allow sufficient time prior to

M ay 20, 2010 at 10:30 a.m.

- Page 18 of 28 -
the interview for the applicant’s rebuttal of any information to the Commission in writing within 30
adverse comments. The applicant should be notified, days of the date of the notice. If a written response is
as specifically as possible without any breach of received, the Commission will forward its
confidentiality as provided for in these Rules, of the recommendation to the Board as soon as it has
subject matter of substantial and credible adverse considered the response. If no written response is
allegations that the Advisory Commission or Board received within 30 days, the recommendation shall be
has received regarding the applicant’s qualifications transmitted to the Board.
that would, unless rebutted, be determinative of the
applicant’s being not qualified. 1 0 . 3 R e c o m m e n di ng Ce r t i f i c a t i o n or
Recertification
9.5.2 At the interview, all relevant factors, including
both positive and negative information, should be The Commission shall recommend to the Board
discussed with the applicant. After the interview, an certification or recertification if the applicant is found
applicant may submit additional information in to have satisfied all the requirements for certification
response to adverse allegations raised in the interview. or recertification by a majority of members of the
This section shall not be construed as permitting the Commission. The Commission’s recommendation to
disclosure to the applicant of information from which the Board shall be in writing. If the Commission is
the applicant may infer the source, and no information recommending denial, the basis for the denial shall be
shall either be disclosed to the applicant or be specified.
obtained by any process which would jeopardize the
confidentiality of communications for persons whose 11.0 Board Action on Commission
opinion has been sought on the candidate’s Recommendation
qualifications.
11.1 Board Action
9.5.3 Upon request by an applicant and at the
applicant’s expense, the interview may be tape 11.1.1 Except as provided in section 11.1.2, within
recorded or reported by a court reporter. The tape or 90 days of the receipt of the Commission’s
transcript shall be the property of the State Bar. recommendation, the Board shall approve or
tentatively deny the application by a vote of a majority
10.0 Commission Action on Application of Board members. An application approved by mail
ballot must be approved by affirmative and unanimous
10.1 Possible Actions vote; if not unanimous, the application shall be placed
on the agenda of the Board’s next meeting. In the
The Commission may recommend to the Board that an event that the review is delayed, each applicant so
applicant be granted or denied certification or recer- affected shall be notified of the delay.
tification or may recommend abatement of the
application during the pendency of disciplinary 11.1.2 While the Board is considering an application
proceedings by the State Bar of California, by the state for certification or recertification, and at the sole
bar of any state, or any body authorized to impose discretion of the Board, the Board may:
professional discipline.
11.1.2.1 Request the applicant to appear for an
10.2 Notice to Applicant of Commission interview. The purpose of the interview is to provide
Recommen-dation to Deny the applicant with an opportunity to address the Board
regarding whether certification or recertification
If the recommendation of the Commission is to deny should be granted. The applicant is not entitled to
certification or recertification, prior to transmitting the have counsel present during the interview.
recommendation to the Board, the Commission shall
so notify the applicant in writing and state the basis
for the denial. The applicant shall be permitted to
withdraw the application or submit additional relevant

M ay 20, 2010 at 10:30 a.m.

- Page 19 of 28 -
 11.1.2.2 Send the application back to the Advisory Such showing may be made by a sworn statement, in
Commission for further action as directed by the the discretion of the appropriate Commission.
Board.
12.2.2 The Commissions shall accept quasi-judicial
11.1.3 If the vote of the Board is to tentatively deny service and may accept other equivalent activities
the application, the Board shall so notify the applicant offered by the applicant to fulfill the requirements of
in writing and state the basis for the denial. The this section.
applicant shall be permitted to withdraw the
application or submit additional relevant information 12.2.3 Tasks that satisfy the individual standards
to the Board in writing within 30 days of receipt of the which occur within the last six months of a
notice. If no written response is received within 30 certification period and are in excess of the number of
days, the tentative denial shall become final. tasks necessary for recertification may be applied to
the next certification period.
11.1.4 The applicant shall be notified of the final
action of the Board in writing. If the application has 12.3 Educational Requirements
been denied, the notice shall specify the basis for the
denial. 12.3.1 An applicant for recertification shall com-
plete a minimum of 60 hours of educational activities
11.2 Duration of Certification relevant to the field of law in which recertification is
sought that meet the criteria for educational activities
Certification by the Board shall commence on the set forth in section 7.3, or the alternative methods set
date indicated on the Certificate of Specialization and forth in section 6.2.
shall remain in effect for the period specified on the
notice of certification unless sooner terminated by the A maximum of one-half of the requirement may be
Board pursuant to sections 14.0 and 15.0, or at the satisfied by the alternative methods set forth in section
request of the certified specialist. 6.2. The specific educational experience may be
further defined in the individual standards.
12.0 Eligibility for Recertification
Commissions may accept equivalent educational
Recertification shall be required every five years from experience offered by the applicant to fulfill the
the date of certification or recertification. requirements of this section.

12.1 Required Period of Law Practice 12.3.2 Each applicant for recertification shall
maintain records sufficient to prove compliance with
An applicant shall, at the time of recertification, be an the educational requirements for recertification for at
active member of the State Bar of California and shall least one year from the date the Board acts to recertify
have been engaged in the practice of law during the the applicant. The applicant shall provide such
previous five years in the area in which recertification records to the Board as the Board may require.
is sought for at least 25% of the time the applicant has 12.3.3 Educational activities that satisfy the
spent in occupational endeavors. individual standards which are engaged in within the
last six months of certification period and are in
12.2 Task Requirements excess of the number of educational activities
necessary for recertification may be applied to the
12.2.1 An applicant must show that during the next certification period.
current certification period he or she engaged in the
practice of the law in the specialty field in which 12.4 Alternative to Educational Requirements
recertification is sought to the same extent as
demonstrated in the application for original In lieu of satisfying the educational requirements of
certification or as set forth in the individual standards. section 12.3, an applicant may sit for and pass the last

M ay 20, 2010 at 10:30 a.m.

- Page 20 of 28 -
written examination administered prior to expiration 12.8 Tolling for Reasons Other than Judicial
of the certification or the first examination Service
administered after certification expires. If an
applicant chooses to sit for the examination At the discretion of the Board upon recommendation
administered after his or her certification expires, of the Advisory Commission, the Board may toll a
certification will be extended for sufficient time to specialist’s certification for a period of up to three
permit the applicant to take that examination. years when the specialist is unable to practice law for
compelling medical or other reasons.
12.5 Independent Inquiry and Review
13.0 Denial of Certification or Recertification
The applicant shall demonstrate proficiency in the
specialty area through independent inquiry and review Certification or recertification may be denied for any
in the same manner as set forth in section 9.0 for of the following reasons:
certification.
13.1 The applicant for certification fails to comply
12.6 Duration of Recertification with the requirements of section 4.0 or the applicant
for recertification fails to comply with the
Recertification by the Board shall commence on the requirements of section 12.0;
date indicated on the Certificate of Specialization and
shall remain in effect for the period specified on the 13.2 The applicant made a material false
notice of recertification unless sooner terminated by representation or misstatement of material fact to the
the Board pursuant to sections 14.0 and 15.0. If Board;
timely application for recertification is made,
certification shall continue in effect until final action 13.3 The applicant has been subject to final
is taken on the application for recertification. disciplinary action by the Supreme Court, the State
Bar Court, or any body authorized to impose
12.7 Judicial Service/Tolling professional discipline; or

12.7.1 The Board may waive the five-year 13.4 The program for certification in that field is
recertification requirement in the event of judicial terminated.
service during the certification period. The
certification period will be tolled for the time during 14.0 Suspension and Revocation of Certification
the certification period that the certified specialist is
actually engaged in judicial service. The certified Certification or recertification may be suspended or
specialist must provide confirmation of the fact that he revoked for any of the following reasons:
or she continues to engage in judicial service when
requested to do so by the State Bar and must notify the 14.1 The certificate was issued contrary to these
State Bar when he or she ceases to be engaged in Rules or the Rules and Regulations of the State Bar of
judicial service. California;

12.7.2 For purposes of this section, a certified 14.2 The certified specialist made a material false
specialist is engaged in judicial service if he or she is representation or misstatement of material fact to the
serving as a judge of a court of record and therefore is Board;
not a member of the State Bar on active status
pursuant to Article VI, section 9 of the California 14.3 The certified specialist has been subject to final
Constitution, or has been granted a judicial service disciplinary action by the Supreme Court, the State
waiver of his or her annual State Bar membership fee, Bar Court, or any body authorized to impose
or is serving as an administrative law judge. professional discipline;

M ay 20, 2010 at 10:30 a.m.

- Page 21 of 28 -
 14.4 The certified specialist has been subject to non- professional discipline, shall be final and shall not be
disciplinary regulatory action by the State Bar, or any subject to further review. In the case of denial of
body authorized to impose such action, that results in certification based upon failure of the applicant to
the certified specialist being prohibited from pass the written examination, the grades given the
practicing law or from holding himself or herself out applicant’s examination by the readers or by the
as a lawyer; Committee of Reappraisers in cases where the
examination is subject to reappraisal, shall be deemed
14.5 The certified specialist has failed to pay any fee final and shall not be subject to review.
set by the Board of Governors of the State Bar,
including all fees assessed pursuant to these Rules; 15.3 Hearing Panel
14.6 The program for certification in that field is
terminated; or If a timely request for a confidential hearing is made,
a confidential hearing shall be conducted by the State
14.7 Failure to sit for and pass the written Bar Court.
examination when an applicant for recertification has
elected under section 12.4 to sit for the examination in 15.4 Burden of Proof
lieu of satisfying the educational requirements under
section 12.3. The burden of proof is on the applicant to prove by
clear and convincing evidence that the applicant
15.0 Hearing on Denial of Application for satisfies the requirements for certification or
Certification or Recertification and Suspension recertification.
and Revocation of Certification or Recertification
15.5 Notice, Time and Place of Hearing
15.1 Request for Hearing
The Clerk of the State Bar Court shall fix the time
Within 45 days after the date of notice from the Board and place of the hearing no later than 110 days from
that an application has been denied or that the Board the receipt of the request, and shall notify the
has determined to suspend, revoke, or not grant a applicant and examiner thereof. Such notice shall be
certificate, the applicant may file a Request for a written, and shall be given to the applicant and
Confidential Hearing. The request for a hearing shall examiner a minimum of 30 days prior to the time fixed
be filed with the Clerk of the State Bar Court and for the hearing. Written notice may be given by
copies thereof shall be served upon the Board. All personal service or by mail, postage prepaid,
hearings on denials of applications for certification or addressed to the applicant at the applicant’s address of
recertification shall be confidential proceedings except record, and, after deposit in the mails, shall be deemed
that, if both parties waive confidentiality, the to have been received by the addressee after the lapse
proceedings shall become public subject to sealing a of time required for normal course of post.
portion or portions of the record subject to Rules of
Procedure of State Bar Court Concerning Orders 15.6 Statement of Issues and Response
Sealing Portions of Record.
At least 15 days prior to the hearing, the applicant
15.2 Finality of Board Action shall file with the Clerk of the State Bar Court a
statement of the issues to be considered and decided at
If no request for a hearing is timely submitted, the the hearing. The statement shall: (1) describe the
decision of the Board shall become final. issues in sufficient detail to permit the examiner to
Notwithstanding section 15.1, a denial by the Board marshal evidence in rebuttal; (2) list the names of
based on failure to pass the written examination or a prospective witnesses, if any, as to each issue; and (3)
denial, suspension, or revocation by the Board based identify documentary and other evidence to be
on a final disciplinary action by the Supreme Court, introduced in support of each issue at the hearing. A
the State Bar Court, or any body authorized to impose copy of the applicant’s statement shall be served on
the examiner by personal service or by mail as set

M ay 20, 2010 at 10:30 a.m.

- Page 22 of 28 -
forth above. At least five days prior to the hearing, 16.0 Reapplication for Certification
the examiner shall file with the Clerk of the State Bar
Court and serve on the applicant, as set forth above, 16.1 Following Denial of Application or
a response to the statement of issues. The response Revocation of Certification
shall: (1) indicate as to each issue whether it is
admitted or contested; (2) list the names of If an application is denied or certification is
prospective witnesses, if any, as to each issue; and (3) revoked, an applicant may reapply at any time by
identify documentary and other evidence to be passing a written examination and submitting a new
introduced by the examiner at the hearing. For good application form. The applicant must disclose the
cause shown, either the applicant or examiner may call previous denial or revocation. Upon reapplication,
additional witnesses and offer other evidence, either the applicant must demonstrate compliance with all
oral or documentary. requirements for certification, provided that the
examination shall be waived if the applicant passed
15.7 Appointment of Examiners a written examination administered within 18
months prior to the date of reapplication.
The Board shall be represented by the Office of the
Chief Trial Counsel or such other person as the Board 16.2 Following Closure of File
may designate.
If an applicant’s file is closed pursuant to section
15.8 Conduct of Hearings 3.2, an applicant may reapply at any time by passing
a written examination and submitting a new
Except where otherwise specifically provided in these application form. The applicant must disclose the
Rules, the confidential hearing shall be conducted in previous closure. Upon reapplication, the applicant
accordance with the relevant Rules of Procedure of the must demonstrate compliance with all requirements
State Bar of California. for certification.

15.9 Review of Hearing Panel Decision 17.0 Designation as Certified Specialist

The applicant or the Board may request review of the A certified specialist shall, when identifying himself
State Bar Court’s decision pursuant to rule 301 of the or herself as such or when offering legal services
Rules of Procedure of the State Bar of California. pursuant to this program, refer to himself or herself
as certified by The State Bar of California Board of
15.10 Supreme Court Review Legal Specialization either by the use of text, the
An applicant and the Board may request review by program logo, or both.
the California Supreme Court of any State Bar action
pursuant to rule 9.13(d) of the California Rules of 18.0 Rights and Benefits of Certification Are
Court only after final action by the State Bar Court. Individual

15.11 Failure to Pay Fees All requirements for and all benefits to be derived
from certification as a certified specialist are
The procedure to suspend or revoke a certificate for individual and may not be fulfilled by or attributed
failure to pay required fees shall be governed by to the law firm of which the specialist may be a
sections 20.5 and 20.6 of these Rules. member.
“Applicant” as used in this section shall include the
certified specialist appealing the suspension or 19.0 No Limitation on Number of Specialty Areas
revocation of certification. in Which Members May be Certified

There shall be no limitation placed on the number of

specialty areas in which an attorney may participate
(subject to the limitations in sections 4.1 and 12.1).

M ay 20, 2010 at 10:30 a.m.

- Page 23 of 28 -
20.0 Specialization Fees specialization program in lieu of the revocation.

20.1 Application Fee for Certification 20.6 Request for Good Cause Waiver or
Reduction of Annual Fee or Extension of Time
The application fee, which includes exam for Payment
registration and certification, shall be set by the
Board of Governors. If an applicant who applied to Prior to revocation for non-payment of the annual
take the examination is unable to do so, the Board, fee, a certified specialist may request a good cause
at its discretion, may refund or credit as much of the waiver or reduction of the fee or an extension of
fee as it deems appropriate. The applicant must time for payment. The review shall be informal in
provide the Board with written notice of withdrawal. nature, and shall be limited to a determination of the
circumstances of nonpayment. Certification may be
20.2 Recertification Fee revoked, or upon good cause shown, the fee may be
waived or reduced or the time for payment may be
The fee for recertification shall be set by the Board extended.
of Governors and is due and payable upon filing of
the application for recertification. 20.7 Educational Program Fee

20.3 Annual Fee A fee set by the Board of Governors shall be

charged to any education program provider as a
The annual fee shall be set by the Board of condition to filing an application for certification
Governors. The fee will be billed and will be due credit. A fee set by the Board of Governors may be
and payable in keeping with the State Bar’s billing charged to any certified specialist, applicant, or
cycle for the annual member fee. If initial course sponsor as a condition of accepting a late
certification as a specialist is granted between application of any type.
December 1 and June 30, the certified specialist
shall owe half of the annual fee for that year. If 20.8 Program Financing
initial certification as a specialist is granted between
July 1 and November 30, the annual fee shall be The fees charged for this program shall be set in an
waived for that year. The annual fee shall be amount necessary to defray the expenses of
waived for certified specialists engaged in judicial administering the program. Such other fees may be
service as defined in section 12.7.2. set and collected as necessary to defray the expenses
of operating the program.
20.4 Annual Fee Late Charges
21.0 Annual Report
Annual fees not paid within 90 days after billing
shall be delinquent and shall be subject to late The Board shall report, at least annually, to the
charges in an amount to be set by the Board of Board of Governors of the State Bar. The report
Governors. shall include, at least, any problems with the
program and recommendations regarding those
20.5 Notice of Delinquency of Annual Fee problems. The report shall be summarized and
published. The entire report shall be made available
If payment of the annual fee is not received within at cost and the Board of Governors shall send copies
90 days of billing, a notice of delinquency shall be to the Supreme Court of California to aid in that
sent to the certified specialist by certified mail. The Court’s continued review of the program.
notice shall state: (1) the amount of the unpaid fee;
(2) the amount of any late charges; (3) that failure to As a part of, or prior to the annual reporting process,
pay the fee and late charges may result in revocation the Board shall evaluate the program to determine
of the certificate of specialization; and (4) that the whether the goals of the program are being met and
specialist or applicant may resign from the whether the program should be modified.

M ay 20, 2010 at 10:30 a.m.

- Page 24 of 28 -
 certification is not available in the field of law in
22.0 Board of Legal Specialization which the lawyer practices or certification in the
Commission’s field of law has been available for
22.1 Composition fewer than six years. If a member of the
Commission misses more than three meetings of the
The California Board of Legal Specialization shall Commission, the member is subject to removal.
be established and appointed by the Board of
Governors. It shall be composed of 12 members, 22.4.2 The Chair of each Commission or his or her
including the Chair, Vice-Chair, one advisor, and at designee must attend all meetings of the Board. If
least three non-lawyers. In addition, the chairs of the Chair misses more than three meetings of the
the Advisory Commissions shall be appointed as Board, the Chair is subject to removal.
voting members.
22.4.3 The appropriate Commission shall assist the
All lawyer members of the Board must be certified Board in administering the Program, including
specialists, except where certification in the field of advising the Board regarding the standards for
law practiced by the lawyer has been available for certification and recertification. The Commissions
less than six years or certification is not available in shall be responsible for constructing and
the field of law or subfield of law in which the administering the examinations, subject to the
lawyer practices. If a member of the Board misses approval of the Board. Except by specific
more than three meetings of the Board, the member authorization of the Board, no Commission shall
is subject to removal. take an official public position on behalf of the
program or the Commission.
22.2 Election of Chair and Vice-Chair
22.5 Council of Past Chairs
The Board shall recommend for appointment as
Chair and Vice-Chair Board members receiving a A Council of Past Chairs shall be established and
majority of the votes of the Board members present. appointed by the Board of Governors as a sub-entity
of the Board to advise and consult with the Board.
22.3 Duties
23.0 Confidentiality
The Board, subject to these Rules, shall administer
the program, including proposing additional fields 23.1 Application
of law to be added to the program. In addition, it
may propose fees and changes to these Rules and All information relating to an application is
prepare forms consistent with these Rules. All such confidential, including the contents of the
additional fields of law, fees and proposed changes application form, documents, records,
to these Rules shall be submitted to the Board of communications, other papers, and statements of
Governors for adoption. references related to an application, except to the
Office of the Chief Trial Counsel, or such other
22.4 Advisory Commissions person designated by the Board to represent it at a
hearing as provided by section 15.7, or upon prior
22.4.1 Advisory Commissions to the Board shall be order of the Board of Governors. The information is
established and appointed by the Board of the property of the State Bar of California and shall
Governors for each field of law in which specialists not be disclosed to anyone, including the applicant,
are to be certified. They shall be composed of nine except that an applicant may be informed as to the
members, including the Chair, Vice-Chair, and one status of his or her application at any time. Nothing
non-lawyer member. All lawyer members of the in this section shall be construed as prohibiting the
Commission must be certified specialists in the disclosure of information of alleged professional
Commission’s field of law, except where misconduct to the Office of Investigation, Office of

M ay 20, 2010 at 10:30 a.m.

- Page 25 of 28 -
Trial Counsel, or other appropriate disciplinary
body of the State Bar. 23.3.2 If a claim of breach of confidentiality is
brought against a member of the Board of Governors
23.2 Independent Inquiry and Review or staff member of the State Bar, the claim shall be
referred to the Board of Governors for its investigation
Notwithstanding section 23.1, with respect to and determination.
applications which are submitted to the Commission
for independent inquiry and review, the fact that an 24.0 Conflict of Interest
application has been filed may be disclosed to
persons from whom information about the applicant 24.1 Circumstances Requiring Recusal
is sought. The applicant is not entitled to know the
identity of or review the written statements of A member of the Board or Commission shall recuse
persons from whom information about the applicant himself or herself from any and all participation in the
is sought or received. consideration of an applicant or from attempting to
influence others with respect to an applicant in the
23.3 Breach of Confidentiality following circumstances:

23.3.1 Upon a claim of breach of confidentiality, a 24.1.1 He or she is the current or former law partner
three-member special committee shall be appointed or associate of the applicant;
by the Board from among its members or the
members of the Commissions to investigate and 24.1.2 He or she, or the law firm or office with which
determine such claim. In the conduct of he or she is affiliated, represents the applicant;
investigations, the special committee may, among
other things, administer oaths and affirmations, 24.1.3 He or she, or the law firm or office with which
compel, by subpoena, the attendance of witnesses he or she is affiliated, is a party to pending litigation
and the production of books, papers and documents in which the applicant, or the law firm or office with
pertaining to the alleged breach of confidentiality. which the applicant is affiliated, is also a party or
Any claim of breach of confidentiality shall be represents a party to that litigation;
investigated fully, including but not limited to, the
confronting of the member of the Board or 24.1.4 He or she, or the law firm or office with which
Commission against whom the claim has been he or she is affiliated, represents a party in pending
made; and if the claim is found to have merit, a litigation in which the applicant, or the law firm or
report shall be made to the Board. The report shall office with which the applicant is affiliated, is a party;
include a recommendation as to whether the Board
shall request the Board of Governors to remove the 24.1.5 He or she or his or her spouse or registered
person(s) from the Board or Commission. The domestic partner is related to the applicant by
special committee shall also report the failure of any consanguinity or affinity within the third degree
person to cooperate in the investigation of the claim. according to the rules of civil law;
No person against whom a claim of breach of
confidentiality is brought shall serve on a special 24.1.6 He or she has any personal bias or prejudice
committee investigating said claim. concerning the applicant which would prevent him or
her from fairly evaluating all of the evidence and
information concerning the qualifications of that
applicant;

24.1.7 He or she would be disqualified were he or

she is a member of the Board pursuant to section
6036, subdivision (a) of the Business and Professions
Code;

M ay 20, 2010 at 10:30 a.m.

- Page 26 of 28 -
 24.1.8 He or she and the applicant stand in the 24.5 Action on Application of Member of the
relation of guardian and ward, conservator and Board or Commission
conservatee, employer and employee, or principal and
agent; or An application for certification or recertification of a
member of the Board or Commission may be
24.1.9 He or she has appeared as an expert witness or considered by the Board or Commission, so long as
acted as a consultant or has been consulted with such member of the Board or Commission withdraws
reference to an actual or threatened lawsuit for or from the room at the time that his or her application is
against the applicant for malpractice. considered, does not vote on his or her own
application and does not attempt to influence another
24.2 Applicant as Opposing Counsel member of the Board or Commission with respect to
his or her own application.
As a general rule, the fact that a member of the Board
or Commission represents one party to a legal matter 25.0 Severability
and the applicant represents the opposing party is not
a fact that requires recusal. In such event, however, If any provision of these Rules or the application of
the member of the Board or Commission shall notify any such provision to any person or circumstances
the applicant and give the applicant the opportunity to shall be held invalid, the remainder of these Rules to
recuse the member of the Board or Commission based the extent that they can be given effect, or the
on a belief of personal bias or prejudice. application of such provision to persons or
circumstances other than those as to which they are
24.3 Recusal Procedure held invalid, shall not be affected thereby, and to this
extent the provisions of these Rules are severable.
A member of the Board or Commission who is
required to recuse himself or herself shall:

24.3.1 Immediately disclose to the full Board or

Commission that he or she has a disqualifying interest
but need not state the reasons therefor;

24.3.2 Withdraw from any participation in the matter

of the application of that applicant;

24.3.3 Refrain from attempting to influence another

member of the Board or Commission; and

24.3.4 Refrain from voting upon the application of

that applicant.

24.4 Disqualification

In the event that a member of the Board or

Commission does not voluntarily recuse himself or
herself, the chair of the Board or Commission may,
upon becoming aware of factors which may indicate
a potential conflict of interest within the meaning of
this section, initiate an inquiry as to whether or not
such a member should be disqualified.

M ay 20, 2010 at 10:30 a.m.

- Page 27 of 28 -
M ay 20, 2010 at 10:30 a.m.
- Page 28 of 28 -