The Recorder reports that the State Bar of California has hired a law firm to investigate its handling of the complaints made against Tom Girardi.

It also announced that the details of the investigation would remain confidential. Ruben Duran, Chair of the Board of Trustees, is quoted thus: “Details of the investigation, including details of past closed complaints and investigations, must remain confidential to comply with the law and to give this investigation the greatest chance of success.”

The law referred to by Chair Duran is Business and Professions Code section 6086.1(b). It provides that

All disciplinary investigations are confidential until the time that formal charges are filed, and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:

(1) The licensee whose conduct is being investigated may waive confidentiality.

(2) The Chief Trial Counsel or Chair of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the licensee, the Chief Trial Counsel or Chair of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the licensee to a fair hearing. If the Chief Trial Counsel or Chair of the State Bar for any reason declines to exercise the authority provided by this paragraph or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a licensee that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.

Section 6086.1(c) provides that the Chief Trial Counsel may disclose confidential information as provided by section 6044.5(b): The Chief Trial Counsel or designee may disclose, in confidence, information not otherwise public under this chapter to “government agencies responsible for enforcement of civil and criminal laws.”

Under this statutory scheme, it seems the contents of any report completed by the law firm hired by the State Bar, Halpern May Ybarra Gelberg LLP, would remain confidential even from the State Legislature unless the Legislature amended to confidentiality statutes to exempt itself for this particular instance.

The Supreme Court is another matter. Because of their plenary power in the regulation of the legal profession (see Bus. & Prof. Code section 6100) and the State Bar’s status as their administrative arm in the exercise of that power, they would have access to the investigation. The Los Angeles Times filed a petition in the Supreme Court in June 2021 seeking an order that the State Bar disclose information regarding the Girardi complaints. The petition invokes the Supreme Court’s inherent authority and argues that disclosure is necessary to maintain public confidence in the judicial system:

“This Petition presents precisely the kind of circumstances in which the “maintenance of public confidence in the discipline system’s exercise of self-regulation” requires maximum transparency. [State Bar Rule of Procedure} 2302(d)(1)(A)(i). Given Girardi’s close ties to State Bar officials, and the influential positions he had in the state legal system, the agency’s failure to take any action against him for decades — despite rampant accusations of wrongdoing — raises serious questions. It is imperative that the public be fully apprised about the nature and extent of the State Bar’s prior disciplinary investigations into Girardi’s conduct. Indeed, public scrutiny would be warranted based solely on Girardi’s prominence in the legal establishment; over his years of practice, he and his colleagues held a number of powerful positions that gave him substantial influence over the state’s legal community. In particular, he served as one of the few private attorneys on the California Judicial Council, and he also served on a committee advising Governor Gavin Newsom on judicial appointments in Southern California. But as detailed in The Times’ investigative report of March 6, 2021, Girardi cultivated particularly deep connections at the State Bar. He had long-standing personal and professional relationships with State Bar executives, as well as officials who were directly involved in disciplinary investigations. . Howard Miller, who was president of the State Bar from 2009 to 2010, was an attorney at Girardi Keese for sixteen years, from 2002 to 2018. Girardi also had a close relationship with the Bar’s former executive director, Joe Dunn, and at one point Girardi’s firm reimbursed the agency for $5,000 in travel expenses by Dunn and State Bar investigator Tom Layton, which were the subject of an internal review. Girardi also provided free legal work to Bar investigator Tom Layton, and employed two of Layton’s children; Girardi also treated Layton to expensive meals, and flew him on his private jet. He also had a close relationship with Bar investigator John Noonen, as well as other personal and professional connections with State Bar attorneys. Both State Bar attorneys and judges attended Girardi’s lavish parties. More than once, Girardi invoked his connections with State Bar officials in legal proceedings where he had been accused of improper conduct. A former State Bar prosecutor even submitted a declaration supporting Girardi’s firm when it was sued by a former client, who alleged that Girardi mishandled settlement funds. On another occasion, Girardi referenced his relationship with a State Bar Court judge, when he was summoned to federal court in Philadelphia to respond to a judge’s concerns about Girardi sending litigation-related correspondence that was described as so “unprofessional” that the judge said it “possibly will lead … to disciplinary action.”

The LA Times petition states a compelling case. The case has been fully briefed and awaits a decision.

In its June 10, 2021, press release, the State Bar stated:

The audit, commissioned by Interim Chief Trial Counsel Melanie Lawrence, revealed mistakes made in some investigations over the many decades of Mr. Girardi’s career going back some 40 years and spanning the tenure of many Chief Trial Counsels. In particular, the audit identified significant issues regarding the Office of Chief Trial Counsel’s investigation and evaluation of high-dollar, high-volume trust accounts.

The Special Audit Committee Report dated November 19, 2021, painted those “mistakes” as simply a matter of the State Bar lacking adequate tools to detect client trust account misconduct and proposed a number of rule and regulatory fixes to correct that deficiency. Now, we are told an outside investigation is necessary to examine how the State Bar handled the Girardi investigations.

And so it is. But how can the State Bar maintain public confidence if the results remain a secret? Somebody at a high level, the Chief Justice or the Chairs of the Judiciary Committees in the Assembly and Senate, Mr. Umberg and Mr. Stone, who recently took the State Bar to task for its lack of focus on discipline, have to take action to clear the air.

Or, they can stall and hope that everyone forgets. Which course of action is the most likely?