State Bar of California Executive Director Joe Dunn wasted no time exercising his new-found authority over the State Bar’s Office of Chief Trial Counsel (OCTC) following the surprising resignation of James Towery as Chief Trial Counsel.  A little more than a week later he fired four of the seven remaining managers in the State Bar’s discipline prosecution office

Its a little like the Mayor firing the fire chief and most of the fire captains in the middle of three alarm fire.   OCTC has been valiantly struggling to reduce its backlog of investigations for some time now.  OCTC staff have been working harder than I have ever seen to keep up with the influx of new matters (many complaints about loan modification attorneys) and reduce the backlog of old matters.  Figures from the State Bar’s 2010 Annual Discipline Report tell the tale:

• The Intake Unit received 17,904 written complaints in 2010. This is roughly equal to the 2009 level, but sharply higher than the levels experienced in 2007-8 (under 13,600 complaints per year). The unit closed 13,235 cases, a 30% increase over the prior year, and forwarded 6,028 complaints to the Investigations unit.
• The Investigations Unit, in turn, closed 3,024 cases – up almost 50% from the 2009 level. It forwarded 1,362 cases to the Trial Unit, an increase of more than one third from the prior year.
• The Trial Unit closed 719 cases in 2010, up from 238 cases the year before. The unit also formally filed 636 cases with State Bar Court, a 50% increase from the previous year’s level of 423.

Despite these efforts, Mr. Dunn felt it necessary to wield the ax.  In the process, he deprived OCTC of about a hundred years of collective experience, including all of the managers who had any experience running the Intake Unit.  Intake is the part of the State Bar iceberg that you don’t see.  It’s critical function is to filter the mountain of information coming to the State Bar to determine what the State Bar is truly interesting in pursuing.

Why he took this extraordinary step is not clear on its face.  No real explanation had been given by the Executive Director beyond vague statements about moving in a moving in a new direction.  But figures from the most recent OCTC report to the Regulation, Admissions and Discipline Committee show a sharp rise in the backlog numbers in the first six months of 2011, from 309 cases at the end of December 2010 to 894 in June 2011.  “Backlog” refers to investigations that have been pending longer than the guidelines given the State Bar by statute, Business and Professions Code section 6094.5, six months for a “simple” case and one year for a “complicated” case.   These guidelines were imposed by the Legislature as part of the complete restructuring of the discipline system in the late 1980’s.   That occurred after a series of stories in the San Francisco Chronicle described the massive backlog of investigations built up as the then woefully underfunded discipline system was faced with a huge increase in the number of lawyers in the early part of that decade.   Backlog is bad.

Mr. Dunn is a politician (as is every Executive Director) and the OCTC purge is surely intended as the a signal to the Legislature that the status quo will change.  He has been quoted as saying that the backlog will be at zero before the end of the year and there will be no “fire sale” in settling discipline cases.  It’s hard to see how that will happen without more liberal settlement authority or “relabeling”, that is, designating incomplete investigations as “notice open” cases prematurely to take them out of investigation status, a strategy used in the past.  In the short run, the departure of most of the experienced managers can only lead to a decrease in productivity.

As with Jim Towery, I can’t be neutral about the firing of the four OCTC managers.  I worked closely with them at the State Bar and I found them worthy opponents after I left.   They deserved better than to be unceremoniously booted out after devoting their professional lives to the discipline system.  I wish Mr. Dunn luck with his tenure at the State Bar but I suspect that this move will be counterproductive and that he will be gone before the backlog is.