The Empire Strikes Back

Jedi-Mouse for web

 

The decision was obvious even before the Board of Trustees started the meeting   Members of the Board greeted Chief Trial Counsel with hugs and kind words.   Union representatives were given an opportunity to repeat their allegations but the futility of their efforts was obvious almost as soon as State Bar Executive Director Elizabeth Rindskopf Parker began to speak.  The final vote in favor of a second term for Jayne Kim was 14-1.

Ms.  Kim now joins Judge Judy Johnson as the only Chief Trial Counsels in the modern era to be nominated for a second term.   Judge Johnson did not furnish her second term,  moving up to the Executive Director position in 1999.    If Ms. Kim is confirmed by the State Senate,  she will have to opportunity to complete two full terms, leaving her permanent stamp on the Office of Chief Trial Counsel.   The Union will try to stop that by lobbying the Senate to reject Jayne Kim but the strong show of support from the Board would seem to make that a difficult objective to achieve.

Ms. Parker’s remarks offered clues to the shape of the counter-narrative offered to her and Board in opposition to the Union’s vociferous attack.  One eyebrow raiser was her statement that no one would question the discipline system is in better shape now than it was before Ms. Kim became Chief Trial Counsel.   Of course, plenty of people are saying that, but because those people are unionized employees of the Office of Chief Trial Counsel (OCTC) apparently they don’t count.   To be sure, the discipline system faces a more benign environment;  the numbers of complaints have gone back down to 2008 level.  The State Bar Court is no longer faced with double and triple setting trials.   But those of us who deal with OCTC on a daily basis see a system where every decision has to go through multiple levels of review.  We attend the settlement conferences where Deputy Trial Counsel repeat positions without being able to explain them, are unable to cite authority supporting those positions, or respond to the the settlement judge’s evaluation intelligibly.   We participate in the trials where, increasingly, our clients are found culpable of less misconduct than charged, or completely exonerated.  Most tellingly, we hear our opposing counsel say, you know, you are right, our position is unreasonable, but there nothing I can do about it.    Those things happened before Jayne Kim became Chief Trial Counsel but they have happened a lot more since and especially since the Supreme Court remanded those stipulated decisions in 2012.

From our viewpoint in the trenches, it is all a big waste of resources.  But the view from 35,000 feet is much different and this is key to understanding this episode of Bar Wars.  The fact that the Union is so pissed off at the Chief Trial Counsel is viewed as evidence that she must be doing a good job.   The counter-narrative would seem to be that the managers in OCTC before Jayne Kim had been in the office so long that they became complacent, became too close to the people that they supervised, that too much discretion was given to Deputy Trial Counsel to settle cases for levels of discipline that were insufficient to protect the public.   OCTC needs to run with a firm hand and if that makes some veteran lawyers yearn for a less stressful era, that is the price of progress.   Hence, Trustee Colantuano’s remark in The Recorder about everyone being mad because their cheese was moved.

mouse in maze

The metaphor comes from a popular book of managerial wisdom from late in the last century but it sounds patronizing.   Part of the beauty of the counter-narrative is that is justifies the transformation of the State Bar into a thoroughly modern 21st century workplace where if you are not unhappy and stressed out, then you must not be working hard enough;  think Amazon.com.   If if you don’t like, go find another job.  Or take retirement.  Experience doesn’t count for much anymore at the new State Bar, with some exceptions, and there are plenty of young lawyers who will take the place of these old timers who just can’t adjust to the pace of change.  References to ongoing “reform” within OCTC  seem opaque until you realize that it most likely refers to replacing many of the current staff, especially the troublemakers.

In fairness, the Executive Director and the BoT probably had little choice.   Discipline is 80% of what the State Bar does.   The whole senior management team has been replaced and no one knows anything about running OCTC except Jayne Kim.   Finding a new Chief Trial Counsel would be a months long process with uncertain result.    OCTC no longer has a deep bench of experienced managers to choose from to  fill the position in the interim.   The Executive Director undoubtedly weighed these factors in making her decision to retain Jayne Kim  and work on sanding down her rough edges rather starting from scratch.  Remarks by Ms.  Parker regarding creating a “collaborative” work environment seem very genuine and playing the conciliator would be well within her job description.

Jayne Kim is  unique as the first Chief Trial Counsel to work her way up from the bottom.   I was her first manager when she came to work for OCTC in 1999. She started as they all did in those days, as an Attorney grade II.  Attorney IIs by tradition have interior offices. When you get promoted to Attorney III, you get a window office; it is one the perks that come with the promotion. When  Ms. Kim started, we had empty window offices because of the shutdown. She began asking for a window office almost immediately and was very persistent. I explained to her that she would get a window office when she had promoted to Attorney III, which I knew would not long because she was very smart and very hard-working. She would not let it go and went around me to ask Fran Bassios,  the Acting Chief Trial Counsel,  for the window office. Eventually, he caved in and gave it to her.   What effect that had on her fellow Attorney IIs, I do not know; I left OCTC soon after.

The Chief Trial Counsel has always had the persistence to get her share of the cheese.   And so skillfully she has reached her current level after taking a strategic detour through the US Attorney’s office.  The nature of the Chief Trial Counsel’s position has always been political, one of the reasons that position is subject to Senate confirmation.   Past Chief Trial Counsels concentrated on that role and left management largely to their Deputy and Assistant Chiefs.   That structure doesn’t exist anymore.  The Chief Trial Counsel has to be both politician and manager, a rare combination.  Jayne Kim has demonstrated her skill as a politician.  Whether she can effectively manage OCTC even if confirmed  in view of such open hostility is an open question.

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