On December 21, the State Bar Board of Trustees will meet to consider the fate of embattled Chief Trial Counsel Jayne Kim. Ms. Kim had the strong endorsement of new Executive Director Elizabeth Parker and new State Bar President David Pasternak for a second term as Chief Trial Counsel until a plurality of the union employees in the Office of Chief Trial Counsel (OCTC) voted no confidence in Ms. Kim in an unprecedented plebiscite. On November 20, two senior discipline prosecutors and union officers, Robin Brune and Erin Joyce, laid out the case against the Chief.
The allegations against the Chief Trial Counsel may seem opaque to those who have not spent time in the State Bar bubble. They can be boiled down to four essential charges. Those charges and commentary follow. Of course, while the Union has made its case against Jayne Kim public, she doesn’t have the same opportunity, so the case against her can only be evaluated by the Board of Trustees. Certain facts on the ground cannot be denied, however. The Office of Chief Trial Counsel is the biggest part of the State Bar’s operations and many if not most of the employees in that shop are upset enough to go public with their unhappiness. This is all occurring while the State Bar is undergoing great scrutiny by the Legislature.
1. The Chief Trial Counsel’s explanation for stipulations kicked back by the Supreme Court is disingenuous; she is seeking to blame staff and prior managers for levels of discipline that were set through her active direction.
In June 2011, former Executive Director Joseph Dunn forced out Chief Trial Counsel Jim Towery and later fired four of the five senior managers in OCTC. Mr. Dunn then announced the goal of eliminating the OCTC investigation backlog by the end of the year and that Jayne Kim, a former OCTC manager who had left the office in 2009 to work in the US Attorney’s office, would be appointed as interim Chief Trial Counsel. It was announced in February 2012 that the backlog had been eliminated. “Interim” was removed from the Chief Trial Counsel’s title and she was later confirmed by the California Senate.
In June 2012, the California Supreme Court announced that it was returning 24 stipulated dispositions to the State Bar Court for further consideration “in light of applicable discipline standards. This had never happened before. These were cases where the facts, conclusions of law and level of discipline had been agreed to by OCTC and the respondent attorney, and then approved by the State Bar Court. The Chief Trial Counsel then decided, after reviewing stipulations pending with the Supreme Court, to request the return of another 24.
The State Auditor’s report issued in June 2015 criticized the backlog reduction project as potentially placing the public at risk. The report stated:
According to the chief trial counsel, a key factor that enabled the
State Bar to decrease its backlog in 2011 was its insufficient quality
control at a time when staff were trying very hard to meet what she
believed to be an arguably unrealistic goal. Specifically, when the
chief trial counsel assumed office in October 2011, she learned that
the State Bar did not require review by management, supervisors,
or peers before filing or settling cases. She also described several
operational changes that the State Bar used to reduce the backlog
related to shifting staffing resources, which we discuss later in
this chapter. Since assuming office, the chief trial counsel has taken steps
to monitor the backlog and to ensure quality control over
case processing. Specifically, she noted that the management
of the Office of the Chief Trial Counsel monitors the backlog
weekly and submits monthly reports to the Board of Trustees
(board). Furthermore, in late 2011 she began providing training
and development programs for State Bar staff, and in 2012 she
implemented a policy requiring managerial review of all decisions
on cases, including settlements.
The Union alleges that Ms. Kim sought to distance herself from the backlog reduction project by suggesting that State Bar employees or the prior managers were responsible for the levels of discipline that the State Auditors report later concluded “may” have put the public at risk. To the contrary, the Union says, the Chief was actively managing staff, with the only mandate being backlog reduction. It is unknown whether the language from the Auditors report is the only basis for this allegation. The impression Jayne Kim gave the Auditors is much different than the “there’s a new sheriff in town” the State Bar was promoting at the time. The Chief’s statement to the auditor’s that she believed zero backlog was “arguably unrealistic” is impossible to square with her statement to the California Bar Journal in August 2011: “She was emphatic…that a zero backlog could be achieved. ” Bus. & Prof. Code section 6079.5 provides the Chief Trial Counsel reports directly to the Regulation and Discipline Committee of the Board of Trustees and does not report to the Executive Director. Did Jayne Kim communicate her opinion that the zero backlog goal was unrealistic to RAD? Apparently not, certainly not publicly. Didn’t she have a duty to? The only conclusion possible is that Senator Joe Dunn was setting discipline policy for OCTC at the time, despite the language of section 6079.5. Did she tell Senator Dunn that backlog reduction was arguably impossible?
From the viewpoint of defense counsel , OCTC was clearly settling cases in late 2011 for levels of discipline that it would not be settling for absent the zero backlog goal. I recall Deputy Trial Counsel telling me in one case in late December that I better take the offer now because the price would go up after the first of the year. This was done at management direction and was not the result of “poor quality control” although no one apparently gave thought to the possibility that the Supreme Court might have a problem with some dispositions. The truth is that the backlog has always been tied to settlement policy. The shutdown of 1998 generated a mountain of cases. When we returned to work in 1999, the Early Neutral Evaluation Conference was instituted under the leadership of the special master Justice Lui and OCTC’s policy was to agree with the State Bar Court’s judge’s evaluation in every case. Former Chief Trial Counsel Mike Nisperos wanted settlement rates in State Bar Court to mirror civil court and the backlog fell. Former Chief Trial Counsel Scott Drexel perceived the Silverton case as direction for tougher discipline from the Supreme Court, toughened settlement policy and backlog increased.
2. The Chief Trial Counsel’s faulty interpretation of the Supreme Court’s remand has led to over-centralized management. This has led to poor charging decisions, an overly harsh settlement policy, unnecessary trials and a number of cases lost at trial.
This is consistent with the experience of many discipline defense counsel. After the Supreme Court remand of the stipulated decisions, it became very difficult to settle cases. The terse language of the remand order reconsideration in line with “applicable discipline standards” did not provide much guidance. Most remanded cases did result in increased discipline; OCTC and the State Bar Court both interpreted the remand as a direction for harsher discipline, as well as a better explanation for how the recommendation was reached. Discipline charging and settlement decisions now go through several levels of review; Deputy Trial Counsel constantly remind us that they have no discretion even on minor issues; even grammatical changes in written stipulations must be approved by management.
This is not new. Centralization of decision-making began in the Drexel administration, where Jayne Kim served as an Assistant Chief Trial Counsel. But it reached new levels after the 2012 Supreme Court action, along with a settlement policy that was clearly calculated to settle no case for a level of discipline that might later be questioned. Many trials ensued, some that OCTC “lost” in the sense that they did not get the levels of discipline that they asked for. But that wasn’t the point; if political heat was to be had for a particular decision, it would be directed to the State Bar Court, not the Office of Chief Trial Counsel. This, also, is not a new sentiment; I heard it expressed in OCTC early in my career when that office was battling the first iteration of the full-time State Bar Court, headed by Lise Pearlman.
Statistics on cases “lost” at trial are not readily available. Discipline defense counsel have urged the RAD Committee in the past to keep statistics on levels of discipline in support of our allegation of routine overcharging. Those statistics, undoubtedly kept by someone, are not published. Much anecdotal evidence supports the allegation that the State Bar Court has often recommended less discipline than asked for by OCTC in recent years, including an increasing number of cases where respondents are completely exonerated, something that used to be a rare event.
3. The Chief Trial Counsel has saddled OCTC investigators with an 90 day deadline to complete investigations and unreasonably large caseloads, up to 50 cases per investigator when 20 is optimal. Performance improvement plans are used when these time frames are not met. The emphasis is on meeting deadlines, not quality investigation.
The relationship between OCTC and its corps of professional investigators has always been problematical. In the 1980’s, the Kroker Commission recommended the creation of a separate Office of Investigations, with its own Director of Investigations, in part to address the lack of a career path for investigators at the State Bar. Morale has always been a problem as investigators have perceived themselves as second class citizens in an organization run by attorneys. The separate Office of Investigation was abolished after the Alarcon Commission in the mid-1990’s found it be a waste and investigators were integrated into the Office of Trials, which became the Office of Chief Trial Counsel. Many different schemes of organization have sought to fully integrate the investigation function and the prosecutorial function without full success.. Most recently, the director of investigation position was resurrected within OCTC and filled until recently by whistleblower John Noonan. That position has now been eliminated and with it, Mr. Noonan’s employment after close to thirty years of State Bar service.
The allegation that the investigation process is more concerned with deadlines than quality is one that has been made by discipline defense counsel for a long time. Large caseloads are not new either, although the large numbers of complaints received during the Loan Mod Wars were new. Those numbers have now returned to something that could be called normal, roughly 2008 levels (see 2014 Annual Discipline Report, at page 16.)
The Union is surely correct that a mandate that investigations be completed within 90 days is difficult to achieve in many cases, and often due to factors beyond the investigator’s control. The use of Performance Improvement Plans (PIP) to enforce these deadlines is a source of special irritation; PIPs are the first step toward discipline.
4. The Chief Trial Counsel has supplied inaccurate information to RAD, including removing State Bar Investigations from metrics supplied to RAD in September 2013, misrepresenting the existence of an investigator mentoring program , referring to a “phantom” law enforcement liasion program that did not exist and representing that OCTC was pursuing immigration fraud by non-attorneys when it has not.
State Bar Investigations (SBI) are investigations opened by the Office of Chief Trial Counsel on its own initiative, usually without a complaint from anyone. The allegation that the Chief Trial Counsel manipulated backlog numbers to omit SBIs was part of Senator Dunn’s whistleblower complaint. The balance of the allegations are new and this reporter has no insight into them beyond the obvious: the Union is attempting to paint a portrait of an untrustworthy executive in charge of the State Bar’s biggest operation.
Personality is an issue here. I was Jayne Kim’s first manager when she came to the State Bar after a brief career in the public defender’s office. There is no doubt that she is very smart, very hard-working and very ambitious. There is also no doubt that she has the kind of hard-driving personality that can rub many people the wrong way. You might be right if you argued, as some have to me, that sometimes a ramrod is needed, that complacency must be shaken up. But where past Chief Trial Counsel have inspired loyalty, the current Chief Trial Counsel has inspired hatred. There are many circumstances underlying this phenomenon but there it is. Senator Joe Dunn hovers like a ghost over the whole affair; indeed, the Union begins its argument by invoking the ongoing litigation over Dunn’s firing and asking whether it would be better just to put all this behind us? For good or for ill, Jayne Kim and Joe Dunn are inextricably linked, first, due to her perceived status as his protegé, and second, over their conflict and the still unclear role that it played in Senator Dunn’s firing.
The new senior executive team, new director Elizabeth Parker, and the new Board of Trustees were undoubtedly hoping that they would not have to go through the difficult task of choosing a new Chief Trial Counsel. But how does the State Bar go forward with Jayne Kim as Chief Trial Counsel with so much apparent hostility directed from the people who have to actually do the work? If it chooses to, the much heralded legerdemain of the new senior management team will be put to the test.