Less Is More

The first meeting of 2015 of the RAD Committee of the Board of Trustees of the State Bar of California helps answer the question of what the post Dunn-ocalypse State Bar would look like.  As opposed to the Discipline Theater approach of the past, the new approach appears to be a low key examination of what is really necessary to protect the public.  Without much fanfare, the State Bar is dialing back two of the more audacious proposals that had the former Executive Director at their genesis:  expanded UPL enforcement in a dedicated unit in the General Counsel’s office and client trust auditing.

The State Bar’s hand may have been forced on the first issue.  Gov.  Brown vetoed one bill that would have given the State Bar expanded enforcement powers in the unauthorized practice of law arena and the expected threat from non-lawyers scammers exploited new changes in immigration law has not really materialized.    In any event, as the Chief Trial Counsel pointed out at the RAD meeting, her office has done this kind of work for years (I did it when I was there) and will continue to do it with or without legislative changes.   The whole idea of creating a separate unit within the General Counsel”s office, weakly  justified as necessary on anti-trust grounds, really looks just an attempt at a little empire building by the former ED in an office under his direct control through his hand-picked General Counsel (former General Counsel now.)   There is no reason OCTC can’t discharge any UPL mission that it is given.  And it looks like they will have the resources to do it (more on that below.)   Dropping the idea of a unnecessary dedicated UPL unit only makes sense.

The idea of randomly auditing lawyer client trust accounts also apparently sprang from Senator Dunn’s brow.   A number of states randomly audit their lawyer’s client trust accounts, the New Jersey program being one often studied.  All of those states have lawyer populations much smaller than California’s.   The idea was that even a small client trust account audit would have an “in terrorem” effect that would induce greater compliance with the client trust accounting rules.   The model is the annual audits of MCLE compliance, which Senator Dunn regarded as a huge success, at least to judge by his constant references to it.  Because a large number of lawyers were found to have inaccurately reported their MCLE compliance, many of whom were later prosecuted for lying to the State Bar, he apparently regarded the program as a success in public protection terms.   While MCLE is important and misrepresenting compliance to the State Bar is a bad thing, the real public protection impact of the MCLE audit prosecutions is questionable (as Judge Remke alluded to in her dissent in the Yee case.)  The “in terrorem” or deterrent effect of the MCLE Audits is certainly questionable;  despite the harsh discipline (often actual suspension), the results of the MCLE audits aren’t getting any better.   The truth is that a certain number of lawyers will not certify their compliance accurately for any number of reasons with every compliance period;  you can pick that low hanging fruit all you want.  But that doesn’t  target the lawyers who are really harming the public; more Discipline Theater.

less is more 2

No doubt that random client trust account audits would uncover some client trust misconduct and deter some.  But it is not going to stop the most serious type of misconduct, the lawyer who intentionally steals money from the client.   In my experience, those lawyers usually know what they are doing and understand what the consequences are.   It will be most effective in uncovering or deterring negligent client trust account practices such as poor record keeping and inadequate supervision of personnel maintaining the accounts.   These problems, while serious, are amenable to less expensive solutions than implementing a random audit program capable to really examining a significant percentage of client trust accounts.  Random client trust accounts may come to California some day but in the short run the State Bar will expand its education efforts and conduct a voluntary survey of the membership to both determine the depth of the problem and to begin the process of making sure lawyers understand the client trust account rules.

Someone recently asked me what changes I thought were needed in the discipline system.   My response was:  nothing.  We need to just let the system work and resist the temptation to keep changing it.   It is difficult to measure how effective the discipline system is in protecting the public, so we measure by proxy, one proxy being the continuing introduction of new measures that purport to make the discipline system more effective in protecting the public.  The machinery is now overhauled with relatively recent changes designed to make it work faster and it has certainly been stress tested over the last few years by the surge of complaints that now is receding.  Even bar critics like public trustee Dennis Mangers, the chair of this year’s RAD Committee, are acknowledging that the system is not now slack in protecting the public (of course, my position is that it never was.)   Just leave it alone.   Let it work.

The latest numbers from the Chief Trial Counsel reported in preparation for the RAD Meeting on March 12 in Sacramento show that numbers of complaints dropping to almost 2008 levels, despite the fact that we have more lawyers.   They may well drop further over the next few years as the lawyer population grows more slowly or perhaps even begins to shrink.  The State Bar is facing the prospect of declining revenues as baby boom lawyers retire and fewer young lawyers step up to take their place.   There are resources to address attorney misconduct and there may be resources to address the UPL issues;  hopefully, those issues will ultimately be addressed in the way Washington State has addressed the Limited License Legal Technician issues.   It’s not too soon to start addressing  the long term reformation of the State Bar as a regulator of all legal service providers, not just as regulator of lawyers.  Needless to say, LLLT’s will pay to be regulated and that revenue stream may make up for the loss of lawyer revenue.

But for a short time at least it’s possible that we may be on the cusp of that long rumored place called “normal” in the discipline system.  Let’s enjoy it while we can.

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