The Mark of Cain, Continued

Imagine if you saw this on your State Bar Membership Records page:

CONSUMER ALERTThe State Bar of California has filed disciplinary charges against this attorney alleging that the attorney engaged in a major misappropriation of client funds. You may read the Notice of Disciplinary Charges filed by the State Bar against the attorney, and any reply filed by the attorney. You may also learn more about the general nature of misappropriationof client funds.DISCLAIMER: Any Notice of Disciplinary Charges filed by the State Bar contains only allegations of professional misconduct. The attorney is presumed to be innocent of any misconduct warranting discipline until the charges have been proven.

Imagine if your colleagues, opposing counsel, clients and potential clients saw this.

In 2011, the State Bar began putting this notice on pages of lawyers accused of misappropriating $25,000 or more.  Later that was expanded to cases of “loan modification misconduct.”

Now the State Bar’s top discipline cop, Chief Trial Counsel Jayne Kim, wants to put these notices on the pages of every attorney who has disciplinary charges filed, mo matter how serious they are.

This will expand the State Bar’s ability to destroy an accused attorney’s practice without ever having to prove their case in State Bar Court.  Despite the disclaimer, few clients or potential clients will employ an attorney who has publicly branded as a threat to the public.   In pre-filing negotiations, the State Bar will have enormous leverage to force an attorney to agree to their terms, no matter how weak their case is.

You can read the proposal at http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000010504.pdf.   Ms. Kim has not asked the Board of Trustees to solicit public comment on this proposal but to merely approve this dramatic expansion of the policy.

The original “Consumer Alert” proposal was put forward in March 2011 by former Chief Trial Counsel James Towery (now Judge Towery of the Santa Clara Superior Court.)  The Board of Trustees (then the Board of Governors)   That proposal was put out for public comment (http://www.calbar.ca.gov/AboutUs/News/Archives/2011NewsReleases/201104.aspx).   See Kafkaesq, “The Mark of Cain”.

A few months later, the Chief Trial Counsel proposed that the Consumer Alerts be expanded  to “loan modification misconduct.”   That proposal was put out for public comment (http://www.calbar.ca.gov/AboutUs/PublicComment/Archives/201111.aspx).

This new proposal will expand the State Bar’s ability to destroy an accused attorney’s practice without ever having to prove their case in State Bar Court.  Despite the disclaimer, few clients or potential clients will employ or continue an attorney who has publicly branded as a threat to the public.   In pre-filing negotiations, the State Bar will have enormous leverage to force an attorney to agree to their terms, no matter how weak their case is.   The Consumer Alert would be posted in every case where formal charges are filed, even cases that merit the lowest levels of discipline, even cases involving violations of the rules that have no real impact on protection of the public.
Aside from the merits of the proposal, Chief Trial Counsel Kim seeks to have the Board approve this major expansion of the Consumer Alerts without seeking comment from the public or from the membership is consistent with the State Bar’s retreat from transparency discussed in a recent article by Cheryl Miller in The Recorder “At the State Bar, the Curtains Are Back Up”  published 3/29/13 (http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202594143453).

The proposal only came to light when the RAD Committee’s May 9 Agenda was published on Monday April 29, just ten days before the meeting.  It is very hard not to conclude that the Chief Trial Counsel and the Executive Director of State Bar hoped that this major policy change could be implemented without any attention.   While the argument  for the Consumer Alerts proposal cites “transparency” as one of its goals of the proposals,   transparency in the process is quite clearly not the goal.

In response to this  attempt to expand the State Bar’s ability to wage economic warfare against attorneys accused of misconduct without soliciting public comment, members of the organized discipline defense bar, working through the Association of Discipline Defense Counsel, decided to themselves put the proposal out for public comment by circulating the proposal to California attorneys and encouraging them to comment by email to the members of the subcommittee of the Board of Trustees considering the proposal.   The response was an avalanche of negative email comments to Board members.   Even attorneys who don’t particularly care about discipline issues were outraged that such a sweeping proposal would be considered without input from the members of the State Bar of California.

Whether it makes a difference remains to be seen.   The truth is that what California attorneys think isn’t particularly important anymore.   Had the proposal been put out for public comment (and it still may) it most likely would have been greeted with the indifference that every expansions of the power of the discipline prosecutor has met  in recent years.   The perception is rife in the profession that discipline is something that only happens to “bad lawyers”, not something that will happen to them.  Until it does.   One of the pernicious aspects of the current proposal is that it feeds that perception by conflating all discipline with a threat to the public.   That is the mindset of our current “zero tolerance” Chief Trial Counsel, a carefully cultivated mindset designed to combat the enduring and false premise that the State Bar has been lenient in administering professional discipline.  Since the “governance” battle ended with the attorney forces on the Board losing two years ago, the only thing that matters is demonstrating sufficient zeal in protecting the public.   Senior management at the State Bar might be forgiven for thinking comment from membership was irrelevant, because it essentially is.   What they seemed to have forgotten, in their haste to give the discipline prosecutors this powerful weapon,  is that offering up these proposals for public comment is a valuable fig leaf for continuing to bamboozle California lawyers in to thinking that they are part of a “self governing” profession.

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