The Great Public Protection Perpetual Motion Machine

The Board of Trustees of the State Bar of California held it’s annual planning meeting in Newport Beach yesterday.  Although it was open meeting, only a few people outside the Board and staff were in attendance, folks like me who have some professional interest in the activities of this peculiar institution.

And the peculiarity of the institution was a big topic of the discussion.  We have already begun to see the impact the “governance” changes that have gone into effect over the last three years, the changes mandated  by the Legislature through SB 163.  Only the most obvious is the State Bar’s public protection mission is literally written in stone outside the State Bar’s new building in Los Angeles.  Public protection was everyone’s mantra at the planning meeting.

One public member of the BoT went so far as suggest that the State Bar was indifferent to public protection prior to SB 163, more concerned with its “trade association” function until the Legislature forced it to cure its slack ways.  Many of us involved in the discipline system over last few decades (25 years in my case) would find this assertion bizarre.  It’s clear that the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role, continues to exist, not to mention ill feeling from the raucous fight over governance a couple of years ago, apparent in other Trustee’s responses to this public member.

But its clear that everyone has gotten the message that public protection is the State Bar’s only mission, even if it has been virtually the only mission for most of the last thirty years.  It is politically incorrect now to suggest that the State Bar do something that might only benefit its members.  In discussion about one specific proposal, an attorney Trustee asked sheepishy whether it was permissible to consider the impact that the proposal might have on attorneys.  The members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.

Almost the only thing that remains is changing the name.  “The State Bar of California” still makes it sound as if this were a bar association, and even our guest presenter, the most astute Prof.  William Henderson of Indiana University, made the mistake of referring to as the State Bar Association.  But the many references to the local bar associations by both Board and Staff made it clear that the trade association function is theirs, and theirs alone.

Many positive changes have been made.  The vertical prosecution system, long advocated by close observers of the Office of Chief Trial Counsel has been implemented, to the credit of the Chief Trial Counsel. After years of IT plans and false promises, it may be that the ancient IT infrastructure of the State Bar has final been replaced.  Efficiency is the other watchword of the day and presentations by Staff furnished cause for optimism that the discipline machinery will spend its limited resources more efficiently in the future.

Another positive change was reflected in the explicit acknowledgement that the culture of State Bar has been dysfunctional.  Beyond that acknowledgement, however, there wasn’t much specific discussion about to change that.  Perhaps that’s because the essential ingredient in changing a dysfunctional organizational culture is inspired leadership, and the State Bar has not suffered from an excess of that.  When I was a manager in the Office of Chief Trial Counsel at the turn of the century, we hired a management consultant who went through a number of exercises with OCTC management identifying exactly what the specific management dysfunctions were.  That study is gathering dust on some shelf somewhere, along with innumerable other studies (the State Bar of California might be second most studied organization on earth, just behind the Soviet Union.)  Perhaps the State Bar’s Strategic Plan will provide continuity for change but the State Bar has some kind of Strategic Plan for many years.

Sharks have to keep moving in order to breathe.  Like the shark, the State Bar has to keep coming up with new ideas to protect the public in order to breathe politically.  Some of those ideas are actually good one;  others seem based on the notion that any measures that increases the onerousness of the discipline system and the harshness of the consequences of discipline, enhances public protection.  This is related to the idea that the State Bar has been lax in protecting the public because “the fox is guarding the henhouse”, the idea alluded to in the public Trustee’s comments.

Among some people, you can’t hang ’em too high.  When I was a young Deputy Trial Counsel, I telephoned a complainant to tell her the good news that the attorney she complained about had been disbarred. “Is that all you’re going to do to him?” she responded.  To me, there was a bit of that spirit in the weak bill of particulars contained in the legislative history of AB 2764, the legislation that brought the governance issue to the fore.

So we have thirty years of constant change to the discipline system and many if not all of those changes have removed procedural rights of an attorneys in the discipline system (e.g., 1997, removing the right of an attorney to challenge inactive status pending a disbarment recommendation and 2011, removing the right to discovery as provided in the Code of Civil Procedure) or increasing the harshness of discipline consequences (e.g. 1997, changes in the summary disbarment statute, see In re Lesansky; 2010, consumer alert badges on State Bar member web pages.)  Some of these proposals have been defeated, such as former Chief Trial Counsel Scott Drexel’s attempt to allow OCTC to opt out of prefiling settlement conferences (2008) and the recent attempt to post consumer alert badges on every respondent in a formal discipline proceeding.

T he consumer alert badge proposal was defeated because it would have given the State Bar the power to impose de facto discipline without proving its case in State Bar Court.  This would be highly efficient.  But there remain realms of the law where the correct result is as important as efficiency, as Prof. Henderson pointed out in his presentation.  He was referring specifically to criminal prosecution and defense, a realm that remains in his “Bespoke” category where the public interest still requires artisanal craftmanship. The discipline system remains in the category, although they always told us that we were building Chevys, not Cadillacs.

Specific proposals were discussed at the planning meeting in three areas (1) mandatory legal malpractice insurance and insurance disclosure requirements; (2) random client trust account audits;  and (3) requiring advanced fees to be placed in trust.

None of these proposals are new and so far they have been non-starters for a variety of reasons.  Each proposal deserves a blog post of its own but in summary

(1) mandatory legal malpractice insurance would benefit the public but would be very complicated and expensive to set up and maintain;

(2) random client trust account audits probably would have some in terrerom effect in discouraging misappropriation but will be labor intensive and raise privacy concerns (see Valley National Bank.) There is also some question whether OCTC has the statutory authority to do random audits;  as OCTC’s liasion with COPRAC in 2000 , I asserted that position and was met with some skepticism;

(3) the Supreme Court has rejected attempts to read Rule 4-100 as requiring unearned advanced fees to be placed in trust (Baranowski) and rejected the last attempt to amend 4-100 to explicitly require it.  

These proposals all merit reasonable discussion.  Almost certainly though, the Chief Trial Counsel will weigh in with her own ideas about enhancing public protection and I can hope that these will not ignore the interests of the members of the State Bar of California and place efficiency ahead of fairness.

3 thoughts on “The Great Public Protection Perpetual Motion Machine

  1. David,

    Another interesting blog. Thanks. Bruce

    Bruce Jaques, Jr.


    AV Preeminent Lawyer – 2014 Martindale-Hubbell Peer Review JAQUES LAW OFFICE ~ A civil litigation practice emphasizing mediation, arbitration and trial, in litigation practice areas including defamation (libel/slander), Internet defamation (e.g., statutory slander, negative consumer reviews, e-mail libel, Internet and blog libel), Civ. Code Sec. 45, et.seq., and anti-SLAPP law (C.C.P. Secs. 425.16, 425.17, 425.18); as well as real estate disputes and other business litigation.

    P.O. Box 1312 Vista, CA 92085-1312 Telephone: (760) 295-1311 Fax: (760) 560-1616 E-mail:;

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  2. Pingback: Bankruptcy for a Lawyer, “Chapter 11″ for the State Bar « Kafkaesq

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