The State Auditor’s Report
Much current discussion has resulted from the State Auditor’s report issued on June 15, 2015. It obviously raises a number of issues that should concern anyone who cares about the administration of justice in California. For the most part, its analysis and conclusions regarding the consistent and long term management failures by the State Bar are spot on. But the State Auditor’s conclusion the State Bar endangered the public by settling discipline cases for less discipline than was necessary to protect the public must be taken with a very large grain of salt. Of course, this is the finding that is drawing the most press attention. The reason is the profound lack of trust in the State Bar’s discipline system, reflected in the fact that the auditor reached this conclusion without the tools or analysis to support it.
The State Auditor Does Not Have the Expertise to Determine the Adequacy of Discipline
While the State Auditor’s expertise in auditing and financial matters, is the without question, they are not knowledgeable on jurisprudence of attorney discipline. The California Supreme Court has held that the determination of the proper discipline in a given case rests on a balanced consideration of the unique factors in each case (In the Matter of Oheb (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 92, citing Connor v. State Bar (1990) 50 Cal.3d 1047, 1059, Schneider v. State Bar (1987) 43 Cal.3d 784, 798.) The State Bar’s Standards for Attorney Sanctions for Professional Misconduct (SASPM), recently revised, are intended to bring a measure of consistency to the process but are not binding on the Supreme Court and prescribe broad ranges of discipline, subject to consideration of factors in mitigation and aggravation. Moreover, settlements in discipline matters are subject to the same types of pragmatic factors as settlements in any other context, such as the strength and availability of evidence.
Ultimately, the appropriate discipline is what the Supreme Court says it is. And while the Supreme Court did identify 27 cases that it returned for reconsideration, during the same time period it approved the recommended discipline in hundreds of others. Moreover, since the finality rules (Cal Rule of Ct 9.10) were approved, the Supreme Court has approved thousands of discipline recommendations, and rejected very few.
The statistics cited the auditor regarding the relative proportions of reprovals and disbarments are interesting but don’t prove the lack of public protection. Measuring public protection is difficult, so many tend to fall back on the intuitive ideas that harsher discipline equals more public protection. This isn’t like the criminal system where sentencing is larger dictated by statute; this isn’t like the civil litigation system where damages are typically measured in dollars. An analysis of whether the discipline system is protecting the public can only be made by individuals with an understanding of the complexities of disciplinary jurisprudence and the functioning of the discipline system.
A Short Relevant History
That the Office of Chief Trial Counsel (OCTC) has exercised flexibility in settlement policy to deal with case inventory is hardly new or confined to the 2011. After the State Bar shutdown in 1998, a rule was adopted creating an Early Neutral Evaluation Conference, essentially a pre-filing settlement conference in State Bar Court for the express purpose fo expediting settlement of the huge case backlog that had occurred under the shutdown. This was done at the direction of Justice Elwood Lui, acting as special master overseeing the expenditure the special assessment ordered by the Supreme Court (In Re Attorney Discipline System (1998) 19 Cal.4th 582).
In 1999-2001, I worked as a manager in OCTC, managing a unit of ten trial attorneys. The policy of the office in that time was to accept the hearing judge’s recommendation resulting from the ENEC to expedite settlement. Michael Nisperos, Chief Trial Counsel between 2001-2005, had a stated policy goal of bringing the settlement rate in State Bar Court closer to the settlement rate in civil or criminal court. During his tenure, Senator John Burton played a major role in setting direction for the State Bar (see Obrien v. Jones (2000) 23 Cal.4th 40; see also Bus. & Prof. Code section 6230.) Senator Burton’s influence and personal interest in the subject of attorneys impaired by substance abuse is also evident in the selection of Mr. Nisperos, a recovering drug addict, as Chief Trial Counsel in 2001.
Mr. Nisperos declined to apply for a second term as Chief Trial Counsel. Scott Drexel, his successor, moved in the other direction, especially following the Supreme Court’s decision In Re Silverton (2005) 36 Cal.4th 81, which criticized OCTC and the State Bar Court for pursuing inadequate discipline. Mr. Drexel’s policy was to interpret the SASPM rigidly, which made it difficult to settle filed disciplinary cases. This, along with other management failures, resulted in a growth in the backlog of discipline cases (see State Auditor’s report at page 22.) OCTC’s rigid interpretation of SASPM was ultimately rejected by the State Bar Court in a decision that the Supreme Court declined to take up on review, despite its decision in Silverton and its earlier remand of the same case for reconsideration (In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980; Chief Trial Counsel’s petition for review denied.)
Mr. Drexel’s bid for the second term as Chief Trial Counsel was rejected by the Board of Trustees in 2009. At the time, there was much speculation that Mr. Drexel did not a get a second term because he was too tough a prosecutor. While the reasons that Mr. Drexel was not reappointed have never been made public, they had nothing to do with his toughness as a prosecutor.
Mr. Dunn assumed his former post as Executive Director in late 2010. Although Bus. & Prof. Code section 6079.5(a) clearly removes the Executive Director from operational responsibility for OCTC, Mr. Dunn moved quickly to remove the senior management of the office and set his goal of zero backlog by the end of 2011. Mr. Dunn was widely perceived as the Legislature’s man in Sacramento, the “right man at the time” as former State Bar President William Hebert stated, a time when the State Bar was going through the reform in its governance process prompted by SB 163 (see Bus. & Prof. Code section 6001.1.) It was assumed that the zero backlog goal was the direction of the Legislature. At the time, most people connected with the discipline system thought that it was an unrealistic goal. The Chief Trial Counsel now says she held the view that this was an “arguably unrealistic goal” in late 2011; it is not clear that she reported this to the Board, or resisted Mr. Dunn’s direction, consistent with her responsibilities under section 6079.5. While the Chief Trial Counsel appeared to be Mr. Dunn’s protege in 2011, they are now at odds in the litigation Mr. Dunn has filed. There is nothing in the State Auditor’s report that supports Mr. Dunn’s allegations that the Chief Trial Counsel intentionally omitted cases from the backlog numbers. The cases that were omitted were so-called “State Bar Investigations” that are inititated by the State Bar itself, not the product of a complaint to the State Bar, cases that don’t fit within the statutory definition of the “backlog” contained in Bus. & Prof. Code section 6094.5.
My view is that it was grandstanding by Mr. Dunn, meant to convey the impression that something dramatic was being done to fix the discipline system, which, by historical standards was no more broken than usual when he assumed his position. Unfortunately, Mr. Dunn’s appointment as Executive Director appears to have been motivated by a desire to kowtow to an important “stakeholder” just as Mr. Nisperos appointment as Chief Trial Counsel was in 2001.
An important point needs to be made here. Much of the confusion, inconsistency and management incompetence that the State Bar has exhibited for the last three decades is rooted in the idea that the State Bar as an institution is beholden to multiple “stakeholders”: the Supreme Court, the Legislature, the Governor, the lawyers of California. Trying to please multiple stakeholders means that you will please none of them. This idea needs to be discarded and replaced with the idea that there is only one stakeholder: the people of the California.
The State Auditor’s Criticism of the Lack of Workforce Standards and Written Procedures is Trenchant
As the State Auditor acknowledges, there is an interplay between staffing levels, case processing times and the level of discipline. It is possible to build a discipline system where every case is tried and none is settled; the effect is to move the case backlog to the State Bar Court, perhaps the most labor intensive part of the process. More State Bar Court judges and prosecutors can be hired.
The auditor’s criticism of the lack of workforce planning (pg. 35-36) is relevant here. One complicating factor may be the unionized nature of the State Bar’s work force. I was very active in the attorney bargaining unit of the State Bar’s unionized work force (Service Employees International Union, local 535) from 1989 to 1999, including serving as President of the attorney unit, union steward and brief service on the contract negotiating team in 1994. Workload standards were discussed by State Bar management during the 1992 and 1995 contract year negotiations and opposed by the union. To my knowledge, they were never enacted.
Also highly relevant is the State Auditor’s criticism of the lack of written policies and procedures in OCTC (p. 39.) Bluntly, OCTC has never been interested in written policy and procedures because it has always been afraid that it might be held to them. Before the shutdown of the discipline system in 1998, much effort was put into a comprehensive prosecution manual by senior OCTC attorneys but the work was interrupted by the shutdown. After the shutdown, the acting Chief Trial Counsel, the late Fran Bassios, was not interested in pursuing the project.
Part of the difficulty in adopting long term quality control mechanisms like workforce planning and comprehensive written policies and procedures has been the State Bar’s tendency to lurch from crisis to crisis over the last three decades, with senior management focused on dealing with the crisis de jour.
The structure of the Board of Trustees, with its limited annual meetings, and turnover from year to year, ensures that top level management and oversight is limited. The State Bar President typically sets the agenda; after his or her election in October, little happens until the Board planning meeting early in the next January. After April, Trustees are usually preoccupied with the election of the next State Bar president in July. There is a precious window of three or four months to accomplish anything meaningful.
Among the Trustees, there is typically little interest in the discipline system, although it is the main activity of the State Bar. Meetings of Trustees’ Regulation and Discipline Committee are typically the last meetings scheduled on a Board Committee day agenda and they start late, often with insufficient time to fully discuss the issues. When the State Bar holds its annual “discipline day” in the fall to introduce new Trustees to the workings of the discipline system, attendance is always light.
An Independent Audit and Review Unit Should Be Created
All of the State Auditor’s recommendations should be adopted.
The scope of one of the auditor’s recommendations, the creation of an Audit and Review Unit independent of OCTC, should be expanded. Such a unit, similar to the Complainants’ Grievance Panel that I worked for from 1989 to 1992, should not only evaluate requests for review from complainants who have had their cases closed but should also audit the performance of OCTC in matters that have gone forward to disciplinary prosecution. The existence of an independent watchdog would bolster confidence in the discipline system and help to answer the question of whether it is really protected the public.