Now Playing: Discipline Theater

The State Bar’s top  discipline cop, Jayne Kim, has been confirmed to a full four year term by the Senate Rules Committee.  Now “interim” will come off the letterhead and Ms. Kim can take a moment to bask in the warm sunlight  of approval.

The “cop” label is entirely appropriate.   As State Bar Executive Director Joe Dunn told the California Bar Journal: “When we brought Jayne back to the bar last year, we said there was a new discipline sheriff in town.  As everyone can now clearly see, it wasn’t just hyperbole.”

No, not hyperbole.  An accurate descriptor and a significant milestone for a discipline  system that has spent 25 years transforming itself into a full fledged government law enforcement agency.

Some people still don’t seem to get it, though.  In his opening remarks at the State Bar’s  19th Annual Ethics Symposium in San Francisco last month, State Bar President Jon Streeter made a passing reference to lawyer “self regulation.”   For a moment, it made me wonder where he has been for the last 18 months but of course he has been squarely in the middle of the tornado all this time.  He of all people must know we are not in Kansas anymore.  So his reference can’t be read literally but more as a paean to a fading idea.

Consider the recently enacted re-statement of the State Bar of California’s fundamental ethos.  Since 1927, Business and Professions Code section 6031 has  stated that the broad mission of the State Bar as aiding in “all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice, including, but not by way of limitation, all matters that may advance the professional interests of the members of the State Bar and such matters as concern the relations of the bar with the public.”  This wonderfully naive language reflects the optimistic philosophy behind the newly integrated State Bar, in keeping with the spirit of the times; jurisprudence was a science that could be advanced if we lawyers all pulled together as a team.  While this section has not been repealed, new section 6001.1 added in 2010 now provides that  “protection of the public shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions.  Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”  Now lawyers are no longer members of the team but a suspect class that the public must be protected from.

After the strenuous efforts of the State Bar over the last 25 years to reform the discipline systems, you can ask why it was necessary to give this statement the force of law.  Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct, now part of the State Bar Rules of Procedure says almost the same thing and it has been around since 1986.  Everyone involved in the discipline system on a regular basis understands this.  For what audience is this dramatic pronouncement intended?

Whoever that audience is, Ms. Kim is fully on board.  She has stated that she follows a “zero tolerance” policy toward attorney misconduct.  This platitude is not much different than the statements of past Chief Trial Counsels, but along with the cop metaphor seems intended to imply some dramatic change from the past, when, presumably, the discipline system was winking at attorney misconduct.

Does this now mean that every violation of the Rules of Professional Conduct or State Bar Act, no matter how petty or insignificant, will be prosecuted, regardless of whether it advances the goals of the discipline system?  Almost certainly the answer is “no” but we don’t know.  A few years former Chief Trial Counsel  Scott Drexel imposed a similar mindset on the prosecutor’s office and the result was a huge backlog of cases because nothing was prioritized.

In keeping with the cop metaphor, discipline defense counsel are again seen as the enemy.  During the brief Towery era, the Office of Chief Trial Counsel began distributing Hearing Department discipline decisions and stipulations to members of the Association of Discipline Defense Counsel as a way to keep both sides on the same page and encourage settlement of discipline cases without trial.   Ms. Kim has ended this practice.

More recently, defense counsel have been informed that OCTC will no longer agree to allow lawyers to plead nolo contendere to discipline charges.  The nolo plea (Bus. & Prof. Code section 6086.5) was an innovation enacted 20 years ago, again to encourage the settlement of discipline cases by providing that admissions made in resolving the discipline case may not be used in civil litigation.  It also provided an innocuous face-saving device for lawyers that did not affect the very real and very serious consequences of discipline.

After the terrorist attacks of 9/11, the country embarked on an air travel security regime that knowledgeable observers have described as “security theater“:  countermeasures intended to provide the feeling of improved security while doing little or nothing to actually improve security.  The same thing is going on with the State Bar of California: call it “discipline theater”; measures and rhetoric designed to provide a feeling that the State Bar is really doing something to protect the public that will actually do nothing but increase the expense of the discipline system and increase the already harsh consequences of professional discipline to the attorneys involved.  The opening of this show does indeed mark the arrival of the State Bar as a mature government law enforcement agency un-tethered from any quaint notions of the legal profession as “self regulating.”

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