State Bar Attempts to Exorcise Transparency Ghost

Boo

A specter has haunted the State Bar of California for thirty years.   I know him well.  He gave me my first job at the State Bar.   He has gone by many names but you might know him by a more modern handle, Transparency.

He came from the TNT room.  The TNT Room was the file room at the San Francisco office, so-called because it was so full of files that it was ready to explode.  During the mid 1980’s the State Bar had an investigation backlog of more than 4,000 files.  The TNT Room eventually made the news about thirty years ago and that press coverage launched a major reconstruction of the discipline machinery under the direction of Prof. Robert Fellmeth,

A small piece of the new machinery was a new entity called the Complainants Grievance Panel (former Bus. & Prof. Code section 6086.11.)  The Panel consisted of seven volunteers, four attorneys and three non-attorneys.  Their mission was to review closed investigations on request of a complainant, to randomly audit a sample of closed investigations and issue an annual report assessing the operations of the Office of Chief Trial Counsel (OCTC.)  The purpose was to keep OCTC honest as it went about clearing its massive investigation backlog,  making sure the investigation process was not given short shrift and to illuminate problems with the process, i.e, transparency.  A staff support unit was created within State Bar, burdened with the title Administrative Compliance Unit.  I went to work for it in March 1989. I helped draft three years of Panel reports that are now lost to history, along with untold numbers of other reports.  We documented serious deficiencies in the investigation processes of the State Bar that helped pave the way for the Alarcon Commission (1994) to recommend important changes to the operation of the State Bar.

The State Bar has been the target of a large numbers of studies through the years, yet can never rid itself of the Transparency Ghost.  No matter how closely it is studied, its core remains impenetrable.  Some of those studies have led in circles;  some of the recommendations of the Alarcon Commission were meant to fix recommendations of the Kroker Commission ten years prior.  The guiding principle seems to be if we study this institution closely enough we will eventually understand it and maybe eventually trust it.

But we always seem to meet with some new revelation that tells us we don’t really know what is going on.   The lollapalooza being the firing of Senator Joe Dunn and associated fallout.

The State Bar now has to work harder than every to exorcise the Transparency Ghost and the Audit Committee of the Board of Trustees is doing just that.  Some of the allegations against Senator Dunn had to do with questionable expense account practices and the State Bar has moved expeditiously to address those.  We can look at the actual expenses of Trustees and Senior Staff and satisfy ourselves that our money is well spent.

But other allegations hang in the air as we wait for Dunn v. State Bar of California grind through the wheels of justice.    These are the basis of the Senator’s whistleblower claim that he was about to expose the misrepresentation of backlog numbers by the Chief Trial Counsel, his former protege.

The TNT Room gave birth the another horror that has plagued the State Bar for almost thirty years now, the Backlog Monster, also known as Business and Professions Code section 6094.5.  The statute sets a 6 month time limit for completing a simple investigation, one year for a complex investigation.   The State Bar reports its statistics regarding backlogged investigations to the Legislature, which has shown a keen interest through the years in that number and reasons behind it.  Thus the State Bar’s obsession with the Backlog Monster.

 

backlog monster

The Chief Trial Counsel’s first big assignment was to keep Senator Dunn’s promise to eliminate the backlog completely.  And so it was eliminated, as shown by the numbers reported; a backlog of 1200 cases at the start of 2011 reduced to just eight by year’s end.

Or was it?  Senator Dunn’s arrows could not be aimed at a more sensitive spot.  Allegations that the backlog numbers have been manipulated have long had currency.  And there are potentially many ways to do it.   Last year  RAD began to require the Chief to use an expanded definition of backlog that includes State Bar Investigations (SBI),  investigations opened by OCTC on its own motion.   Closing a complaint from a complainant and re-opening it as an SBI furnished one potential way to avoid uncomfortable deadlines like the backlog and the rule of limitation.  All the discussion that has occurred over the last few years at the Board level about metrics and OCTC’s “Waiting for Godot”  case management system that was supposed to deliver those great numbers doesn’t seem to have come to much, at least from the outsider’s perspective.  No one outside OCTC really understands how it works, and very few have demonstrated any interest in learning.

Perhaps that case management system will come when the storm passes.  Maybe one day the Board (charged by statute with oversight of the Chief Trial Counsel, unlike the Executive Director) will really understand what goes on in OCTC well enough to discharge that function.   The current leadership of the Board inspires confidence but the weight of State Bar history and the passage of time points in the other direction.  More than likely that Ghost will be kicking around long after I have joined him in the spirit world.

 

 

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