This week is a mixed bag for that peculiar institution, The State Bar of California.
Good news: Dennis Mangers, public member of the Board of Trustees announced that he is going to the serve out the remaining year of his second term on the Board. Mr. Mangers had threatened to resign after a dust-up with incoming President David Pasternak over Mr. Pasternak’s appointments to Board committees, including the powerful Board Executive Committee. He has apparently concluded that he can be a greater force for change by staying on the Board. The Governance reform process created by SB 163 in 2010, is ongoing; the Governance in the Public Interest Task Force (GITPITF), is charged with submitting a report by March 2017 detailing “its recommendations for enhancing the protection of the public and ensuring that protection of the public is the highest priority in the licensing, regulation, and discipline of attorneys.” GITPITF met recently and heard a spirited presentation from Ed Howard from the Center for Public Interest Law (CPIL), who argued that the present Board configuration, where lawyers hold 13 out of 19 seats, is against the “state of nature.” CPIL’s views carry some weight; its director Robert Fellmeth designed the current discipline system in his capacity as the Legislature’s first Discipline Monitor almost thirty years ago.
These events occur in the wake of the State Auditor’s report released in June that was highly critical of the State Bar, in part because of the backlog reduction project that sprang from Senator Dunn’s fertile brain in July 2011, after he effectively decapitated the Office of Chief Trial Counsel. The auditor concluded that the push to reduce the backlog “may” have put the public at risk by settling cases for more lenient discipline than merited. At the hearing on the recently signed fee bill, Assembly Judiciary members were not happy. While the fee bill was amended to add transparency measures, compliance the Bagley-Keene open meeting law and the California Public Records Act, the legislators made it clear that they might be open to more sweeping measures in next year’s fee bill. As we move on, this seems more and more likely…
Bad news: the unionized work force in the Office of Chief Trial Counsel (OCTC) voted “no confidence” in current Chief Trial Counsel Jayne Kim. OCTC staff have complained of large caseloads since Ms. Kim was appointed interim Chief Trial Counsel in July 2011, But a whistleblower complaint goes much farther, accusing the Chief Trial Counsel of “disregard of her responsibilities, inadequate performance and dishonesty” citing her alleged attempt to blame a staff member for the misrepresentation of backlog numbers to the Board Regulation and Discipline Committee, and much, much more. While the State Bar’s new executive team is bullish on the Chief Trial Counsel, the tone of this unprecedented attack shows loathing on a scale not previously seen by your observer. Out of 200 employees eligible to vote, 87 voted “no confidence” in Jayne Kim; 27 voted against the measure; 76 chose not to vote at all.
Labor strife is not new at the State Bar. In 1986, OCTC attorneys went on strike. At the same time, the State Bar was fighting for its existence in the wake of exposes published in the San Francisco Chronicle. Both events followed a period of time when the Board of Governors kept bar dues low and underfunded the discipline system to the point of breakdown. Somewhere in the vault of documents leftover from my own days as a union activist is a memorandum from 1983 where discipline prosecutors complain about having to use old scraps of paper to take notes because there isn’t enough money to buy legal pads. The issue of inadequate resources was raised in the State Auditor’s report and it recommended a workforce study which will be done. No close observer of OCTC can doubt that staff has worked its collective ass off for the last four years.
Undertaking an unprecendented backlog reduction after an unprecedented firing of your entire senior staff while you are being deluged with an unprecedented surge of complaints was perhaps not the best management decision. That is three “unprecedenteds” in the same sentence and it cannot be good.
But when your pick a politician as your manager based on that person’s imagined political clout, maybe something like this is inevitable. A prophet is, of course, without honor in his own country (“Meet the New Boss“) but the political context surrounds all of this. Yes, the State Bar has an impressive management team in place. But it has been making the same mistakes over and over again for the last forty years. This is deeper than personnel; it about a culture than can only fixed by major structural surgery, a paradigm shift in today’s nomenclature.