Political writer Michael Kinsley defines a gaffe as when a politician accidentally tells the truth.
The comment by the State Bar’s number one politician, President David Pasternak, on the Albini case arguably falls into that category. Without meaning to, he tells a disturbing truth about the priorities of the discipline system: fairness to lawyers is not among them.
As quoted in the Christmas Eve edition of The Daily Journal:
“If anything, the allegations are that we are trying too hard to protect the public, which is much better than not trying hard enough,”.
Far from protecting the public, the facts of Albini are a stunning example of indifference and incompetence in the Office of Chief Trial Counsel, and the price one attorney paid for it.
Dianna Albini was charged with most serious of misconduct, misappropriation of $50,000 from a personal injury settlement in April 2007, money that was withheld to pay a medical lien. The client did not complain until March 2014. In the meantime, Ms. Albini had closed her law practice after her appointment as an administrative law judge in 2009. She had destroyed the client’s case file and had destroyed most of her client trust account records, which by rule she was only required five years after final distribution of the funds (Rule 4-100(b)(3).) The bank had also destroyed its records regarding the client trust account.
The State Bar had no evidence that the lien had not been paid. In the course of its investigation, its investigator contacted the putative lienholder and was told that it had no collection notification regarding the client and that if the lien had not been paid, if there was an outstanding amount owed from the client, she would have been subject to collection efforts on the part of the lienholder’s collection agent, Trover Solutions. In fact, the State Bar later acquired a document from Trover Solutions indicating that the lienholder had been paid:
“To date, Kaiser has never asserted a lien against Harris. In fact, no entity has asked Harris to pay anything regarding the medical bills. The most interesting, compelling, and very credible testimony regarding the payment of lien came from Denise Standridge, the attorney for AC Transit. She testified as to the meaning of Consolidated Statement of Benefits provided by the Kaiser Foundation Health Plan (Healthcare Recoveries was its agent) attached in a letter dated December 16, 2004, from attorney J. Scott Byerley of Sharps & Associates. It stated that the total billed charges, the benefits provided and the balance due was $60,889.13. And the amount received was zero. Standridge testified that it meant that Healthcare Recoveries (collection agency for Kaiser) was owed $60,889.13.
Then Standridge looked at Trover Solutions’s Provider Statement of Benefits. (Trover Solutions was the successor to Healthcare Recoveries.) That statement stated that the total billed charges was $60,889.13 and the TOTAL PAID CHARGES was $60,889.13. Standridge testified that the “total paid charges” meant that the bill had been paid.”
Albini, slip opinion at page 6 (emphasis added.)
Ms. Albini told the State Bar that she paid the lien. Despite the complete lack of evidence ( let alone clear and convincing evidence) supporting misappropriation, despite Ms. Albini’s information that she had paid the lien, and despite knowing that the lienholder would have pursued collection activity if the client owed anything, the Office of Chief Trial Counsel chose to prosecute Ms. Albini and filed a notice of discipline charges. Then, despite having obtained possession of the Trover Solution’s document indicating that the lien had been paid, it continued to prosecute those charges.
Along with that filing came the posting of the Consumer Alert badge on her State Bar member page. The same Consumer Alert Badge that the Chief Trial Counsel wanted to post on every attorney’s page who was filed on. That proposal, initially brought to the Regulation and Discipline Committee for approval without any public comment was eventually abandoned in 2013 after massive unofficial public comment.
Ms. Albini’s reputation was ruined. She was terminated from her position as an administrative law judge. She had defend herself from discipline charges with no possibility of recovering her attorney’s fees. Superb lawyering from her counsel Sam Bellicini (www.statebaradvice.com) secured her exoneration at trial but it was a Pyrrhic victory for a lawyer whose career and repuation were destroyed.
But what if Albini is an exception, an outlier to use the trendy term, something that really goes against the grain? Within the last few years, as the discipline system has geared up to do twice the work in half the time, as case evaluation and decision-making have become every more centralized in the interest of “standardization” (one of the Chief Trial Counsel’s accomplishments, according the State Bar’s press release announcing her reappointment), and the State Bar has repeated the public protection mantra so often it is now literally engraved in the concrete of the State Bar building, we have seen more and more cases resulting in exoneration and dismissals before trial, a trend noted a long time before the State Bar Attorney’s Union made it part of its brief against Jayne Kim (Pyrrhic Victories: Exoneration in State Bar Court, October 25, 2013.)
Albini really does look like part of a trend. And the President’s remark helps to explain that trend. Mr. Pasternak seems to be saying that protecting the public requires the Office of Chief Trial counsel to be so zealous that we can tolerate some unfairness by prosecutor; that it is, practically speaking, a zero sum game. Some attorneys will have their careers and lives ruined but that’s the price we pay for progress. As Mr. Colantuano might say, they just had their cheese moved with extreme prejudice.
Of course, I could be too hard on Mr. Pasternak. It could be that he doesn’t know that the State Bar’s lawyers filed a case with no evidence save exculpatory evidence. In that case, his comments seem even more curious; wouldn’t it be prudent to find out what happened before commenting? Doesn’t what really happened matter? If Mr. Pasternak did not know the facts about Albini before commenting, it suggests that it does not. If the State Bar does it, it must be public protection, an unconscious echo of Nixon’s famous dictum “if the President does it, it is not illegal.”
The President of the State Bar can’t possibly really believe that unfairness is OK in the discipline system. Mr. Pasternak owes Dianne Albini an apology.