The State Bar of California 2022 Annual Discipline Report is out and it raises a question: how do you measure the thing that didn’t happen?
The numbers we are presented with show that the amount of money spent on the discipline prosecution office, the Office of Chief Trial Counsel (OCTC) increased from $43 million to fiscal year 2018 to $61 million in fiscal year 2022. The overall cost of the discipline system increased from $68 million to $91 million. Over the same time period, the number of attorneys disciplined decreased from 361 to 262, including a decline of 50% in the number of disbarments, a 30% decline in the number of attorneys suspended, but an almost 100% increase in the number of attorneys publicly reproved and a small increase in the number of attorneys privately reproved. The number of cases opened in 2022 than 2018 was slightly less (16,355 versus 16,673) but coming after large increases in the number of cases opened in intervening years, 20,979 in 2020 for instance. OCTC’s inventory of open cases at the end of 2021 was large,10,054.
What do these numbers mean?
One picture is a bloated bureaucracy spending more money than ever before and accomplishing less. That is a view that sits comfortably within decades of criticism of the State Bar by the Legislature and the State Auditor as being too lax on public protection.
But maybe it means just the opposite. Maybe the fewer number of discipline attorneys means that the discipline system is working well by deterring attorney misconduct before it occurs. Isn’t that the reason that discipline proceedings and outcomes are now highly publicized on the State Bar’s website?
We have also made it easier to gather more information on attorney misconduct through measures like online reporting of State Bar complaints. 20,979 cases is a lot of information. This number brings home that most of OCTC’s work is below the waterline, sifting through massive amounts of information to determine what cases must be prosecuted to protect the public.
The question we all want to answer is: do we know that the discipline system achieving its goals, defined broadly by discipline Standard 1.1: protection of the public, the courts and the legal profession; maintenance of the highest professional standards; and
preservation of public confidence in the legal profession.
The question we may not want to answer is: can we know that the discipline system is achieving its goals?
Deterrence is difficult to evaluate because it requires us to measure a thing that does not exist. A cursory search reveals no readily accessible academic research on the deterrent effect of lawyer discipline.* While the discipline system certainly can prevent misconduct by troublemakers by removing them from practice, empirical evidence that it deters misconduct in those not prosecuted cannot be found and may be impossible to find. But we assume that deterrence exists. Since we can’t measure directly whether the discipline system is achieving its goals, we measure by proxy, that proxy being the number of lawyers that are disciplined. In this way, discipline, meant to be a means to achieve the goals of the discipline system, becomes the goal of discipline system.
As circular as this is, this is the only way most people can grasp the numbers in the Annual Discipline Report. By this measure, the discipline system must be failing simply because it is not disciplining enough lawyers. Not when we are spending $91 million a year on it. The truth is that we can never know if the discipline system is protecting the public or not. We can only guess. The paradoxical numbers (more money spent, fewer lawyers disciplined) only confirm that we are guessing.
*A concise general summary of deterrence theory in criminology can be found in Loughran, Deterrence, Oxford Bibliographies https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0167.xml).