I can’t be neutral about the resignation of James Towery as the Chief Trial Counsel of the State Bar of California.    I consider him a professional friend and colleague.  I thought his hiring was a welcome sign of a  return to sanity in the discipline system after the madness of the Drexel years.  His background, including his service as State Bar President during the plebiscite crisis of 1996, gave every indication that he had the leadership skills, the political savvy and the substantive knowledge to  solve the deep problems facing the discipline system, the most obvious being the enormous backlog of discipline cases leftover from the Drexel administration.  He sacrificed a lot to take the job and he came into it with a lot of zeal.  Now,  just a year later, that promising start is over.

Whether Mr. Towery’s departure was for personal reasons (as asserted in the press release announcing it) or political reasons, or some combination of both, it shows that this organization is deeply dysfunctional.   At the very least, it will have a very difficult time recruiting anyone of Mr. Towery’s calibre to run the Office of Chief Trial Counsel.  It also leaves an organization in chronic need of leadership leader-less at at time it when it under enormous stress.  Stress from the huge backlog of discipline cases, stress from uncertainly over the future of the State Bar itself and stress from the peculiar labor-management issues intrinsic to the State Bar (but similar to the issues facing other government agencies.)

Through it all the professionals at the State Bar persevere.  This organization has been more or less in a perpetual state of crisis for 30 years and they have learned to function through adversity.  In some ways, Towery’s resignation is just the latest chapter in an ongoing State Bar soap opera.

But there are disturbing overtones that suggest that this time may be different.

For one, it occurs against the backdrop of the contentious fight over “governance” reform that split the State Bar Board of Govenors (soon to be the “Board of Trustees“) in a way that has never happened before.  The recently amended fee bill in the Legislature embraces governance reform a little less than the minority advocated but a whole lot more than the majority wanted.  And the majority had the chutzpah to oppose the compromise.  This process is going a certain direction and even if it goes no further (unlikely in my view) it has effectively ended any legitimate support for the myth of lawyer self-regulation.

For another, there is the apparent interference by the Executive Director in the operations of the Office of the Chief  Trial Counsel.  The Recorder has reported that the Executive Director Joseph Dunn took the job of making the statutorily mandated State Bar Annual Discipline Report away from Mr. Towery and giving it to General Counsel Starr Babcock.   This is unprecedented, as far as I know.  A recent memo from Mr. Dunn to all State Bar employees states that Deputy Executive Director Robert Hawley was appointed to serve as the “interface” between the Chief Trial Counsel and the Board’s Regulation and Discipline Committee (RAD).  This appears to violate the spirit, if not the letter, of Business and Professions Code section 6079.5(a) which recites that the Chief Trial Counsel shall not serve under the direction of the Executive Director but will report directly to RAD.   The independence of the Chief Trial Counsel was one of the reforms enacted as part of the overhaul of the discipline system in the late 1980’s under the aegis of Prof. Robert Fellmeth, one of forces behind “governance” reform.

Clearly, the Executive Director has a concern with the information that was coming from the Office of Chief Trial Counsel.   Mr. Towery’s written reports have been exceptionally candid, for instance in acknowledging the paucity of discipline prosecutions of “loan mod” attorneys and it looks like that was a problem.  Was Jim Towery pressured to leave because he told some inconvenient truths?  We don’t know the answer, and will probably never know, but the question is squarely presented by Mr. Dunn’s actions.

The Legislature, for now, is content to move incrementally.  But it has put a mechanism in place to plan for a transition.   That transition should be to a new independent agency within the judicial branch to handle the government regulatory functions without the stigma of being run by those it regulates and a new voluntary California Bar Association that can function as a true trade organization and advocate for the profession without one hand tied behind its back.    Nothing short of this will cure the dysfunction of the State Bar of California.