The staff at the State Bar of California’s discipline prosecution office, the Office of Chief Trial Counsel (OCTC), are working like dogs to make the State Bar Executive Director’s promise of eliminating the backlog of cases by year’s end come true.
What is the backlog and why does it matter?
The answers have their origin in 1985. That year the San Francisco Chronicle published a series of newspaper articles documenting the enormous number of cases that were slowing the discipline system to a glacial crawl. One of the articles discussed what was nick-named the “TNT Room” in the Bar’s San Francisco office, so-called because it was so stuffed with files that it was about to explode. In response to those articles, the California Legislature reformed the discipline system, after briefly flirting with idea of taking discipline away from the State Bar. With the assistance of Prof. Robert Fellmeth at the Center for Pubic Interest Law at the University of San Diego Law School, a new discipline system was designed, with a new full time professional State Bar Court as its centerpiece. But OCTC was reformed as well, including the requirement that the State Bar adopt processing time goals for resolving complaints:
6094.5. (a) It shall be the goal and policy of the disciplinary agency to dismiss a complaint, admonish the attorney, or forward a completed investigation to the Office of Trial Counsel within six months after receipt of a written complaint. As to complaints designated as complicated matters by the Chief Trial Counsel, it shall be the goal and policy of the disciplinary agency to dismiss, terminate by admonition, or forward those complaints to the Office of Trial Counsel within 12 months.
Note that the statute refers to the “disciplinary agency”, not the State Bar of California, just in case someone other agency was given the job of disciplining lawyers.
The last 25 years of OCTC’s existence have been haunted by the ghost of the TNT Room, the disciplinary backlog, the numbers of complaints that are not resolved within these guidelines, 6 months unless the case is complex, then 12 months. Within the last few years, a new backlog number has become important as well, the numbers of completed investigations where the decision has been made to file a notice of disciplinary charges but charges have not yet been filed, the “notice open” backlog. One reason for the attention is that the complaint backlog number can be manipulated by prematurely “completing” investigations, advancing to the case to “notice open” status, despite the adequacy of the investigation. Another reason is the notice backlog dramatically grew beginning in the tenure of former Chief Trial Counsel, at one point reaching 1400 cases.
Some of the delays were striking. One case where my client acknowledged minor misconduct early in the investigation stage languished in “notice open” status for over two years before finally being closed with a warning letter. And it wasn’t only minor cases that waited years for resolution; a State Bar prosecutor, lamenting the lack of prioritization in the office, told me of misappropriation cases with similar delays.
Prioritization has long been the subject of internal debate within OCTC. The idea of creating special prosecution units, “strike teams”, to target the most serious misconduct by using the “involuntary inactive enrollment” remedy provided by Bus. & Prof. Code section 6007 has long be discussed and sometimes tried, but the remedy is labor intensive. The Trevor Group prosecutions kept forty OCTC staff, including current Interim Chief Trial Counsel Jayne Kim, occupied for several months. Former Chief Trial Counsel James Towery created a special prosecution unit to target major misappropriations in February 2011. But, despite success in reducing the backlog in 2010, the backlog numbers moved dramatically upward in early 2011. Three months later Towery resigned as Chief Trial Counsel after his confirmation hearing was cancelled. Four senior managers in the office, including one who had long advocated the creation of “strike teams”, were fired. The misappropriations unit was quietly disbanded as OCTC turned all its efforts to backlog reduction.
Allocating the State Bar’s resources to deal quickly with lawyers who are doing the most harm would seem to be common sense, a smart approach to getting the most bang for the buck. But apparently is it bad politics. As Richard Zitrin has observed, the State Bar is more interested in the appearance of public protection than the reality of it. As a result, the State Bar must continue to play the numbers game, to propitiate the ghost of the TNT Room, the ghost that continues to exert its baleful influence through the backlog statute. Repealing the backlog statute would make sense but that would require the Legislature to show some trust in the State Bar, something it has not done in the last 25 years.