Cain, The Final Chapter: Chief Recommends No Further Action On Consumer Alert Proposal

The Chief Trial Counsel of the State Bar of California has recommended that the Regulation, Admissions and Discipline Oversight Committee (RADO) take no further action on her proposal to expand the use of the “Consumer Alert” badge on the State Bar website member pages, a proposal that has been discussed extensively here (here, here, here.)  This might be regarded as a rare victory for discipline defense counsel, who submitted the only public comment on the revised Chief Trial Counsel’s proposal.  But more accurately, it represents an acknowledgment that the original proposal was a massive overreach on the part of the discipline prosecutor.

But a curious passage at page 3 of the Chief’s memo, including a footnote, relates to an another issue, noted the defense bar response to the Consumer Alerts proposal, whether there is an increasing trend toward exoneration in State Bar Court.

As of September 2013, the percentage of filed cases that resulted in dismissal this year was 1%. In other words, 99% of the Hearing Department decisions and orders filed this year have resulted in culpability or other favorable findings for OCTC.  OCTC notes that this calculation does not take into account the last quarter of 2013, so the percentage may change by year’s end.

To avoid concerns of self-reporting, OCTC asked the State Bar Court to provide data regarding court dismissal of cases. According to that data, from January 1 through September 24, 2013, there were eight (8) dismissals out of 821 filed Hearing Department decisions and orders (266 decisions and 555 other dispositions).

99% sounds very impressive until we note that its based not only on Hearing Department decision but 555 other orders, all characterized as “dispositions.”   What exactly does that 555 include?  It sounds as if it includes decisions on motions, including motions to dismiss.  Did these motions entirely dispose of the case or were they just partial dismissals? No further information is supplied.  And no information is supplied as to the historical trend.

And why must “concerns with self reporting”  be avoided.   This cryptic reference suggests that RADO has not been entirely comfortable in the past with the statistical world as painted by the Office of Chief Trial Counsel.  While its a given that misleading with statistics is a necessary leadership skill in this modern world, this passage in its entirely suggest that concerns about raw numbers from OCTC are not misplaced.   Why play number games to get to 99% unless there is something you want to conceal?  This hardly seems consistent with the transparency that is part of the rationale for the Consumer Alerts badge.    

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