Throughout its existence attorney discipline has been a punitive system.   While couched in the rubric of public protection, attorney discipline systems have always operated by imposing sanctions for proven misconduct, sanctions that hurt, including the ultimate sanction, removal from the profession.  Older cases refer to attorney discipline as “quasi criminal”  (see In Re Ruffalo (1968) 390 U.S. 544, 551.)  While attorney discipline almost always contains educational and remedial elements these days, it is still a fire department that almost always arrives after the house has burned down.

But what is we could prevent those fires before they breakout?  Prof. Susan Fortney writes of the recent approaches that have been adopted in Australia in her paper Promoting Public Protection through an “Attorney Integrity” System: Lessons from the Australian Experience with Proactive Regulation of Lawyers in the most recent issue of The Professional Lawyer, the scholarly publication of the ABA Center for Professional Responsibility.

As part of the reforms that legalized the alternative business structures the provide for some degree of non-attorney ownership of legal service providers, regulators in Australia required those entities to engage in an active management approach; in Prof. Fortney’s words:

To address questions related to the effect of non-lawyer ownership and limited liability, the statute imposes a number of management safeguards. First, the incorporated legal practice (ILP) must appoint a legal practitioner director to be generally responsible for the management of legal services provided by the firm.  Second, the statute provides that the legal practitioner director must ensure that “appropriate management systems” are implemented and maintained to enable the provision of legal services in accordance with obligations imposed by law.  The failure to implement and maintain appropriate management systems may constitute professional misconduct and can result in legal practitioner directors losing their practicing certificates and liquidation of the legal practice.  Regardless of whether there are any non-lawyer owners, all incorporated legal practices must meet these requirements.

Ethics lawyers have long preached pro-active risk management approaches to lawyers to help them understand how to stay out of trouble.  Australia has gone a significant step beyond, requiring that lawyers and law firms designate a responsible risk manager, requiring that risk management assessment take place and requiring that appropriate risk management be put in place.  Moreover, the regulating authority helps practitioners and law firms to become compliant.

Punitive discipline would, of course, still be available to address misconduct like dishonesty but moving toward a Attorney Integrity System approach will discourage those types of practitioners as well.  In my experience, they don’t have a keen interest in practice management.  Those seeking an easy graft won’t go through the effort.   Similarly, those with psychological or health problems would probably have trouble maintaining those certifications before they could harm clients;  moreover, moving away from a punishment based system would encourage them to seek help early.

The State Bar of California is taking its first small steps in the direction of creating an Attorney Integrity System with its project to create a voluntary online Client Trust Account survey of members, an instrument designed to both gather information for the State Bar and to educate survey takers about client trust accounts.   The Board of Trustees considered the expensive approach of a creating a full bore client trust account auditing programs along the lines of those in several states, all much smaller than California but chose to follow the educational path as an inexpensive way to address one of biggest causes of client trust account misconduct, sheer ignorance of the requirements.

Implementing an Attorney Integrity System in the Bear Republic won’t be cheap but the cost of discipline system is already amazingly expensive, more than  $64 million in 2014, according a year to the State Bar’s Annual Discipline Report at page 56.  And there is every prospect that it will be more effective at protecting the public, promoting confidence in the legal system, and even helping lawyers be better, happier, more successful practitioners.   While Australia’s reforms occurred in the course of their adoption of alternative business structures, those aren’t necessary to begin moving toward an Attorney Integrity System, as Prof. Fortney observes.  It is a positive step that regulators and practitioners can begin moving toward now.

 

Little has been heard from Senator Joe Dunn, the former Executive Director of the State Bar of California since he was fired and filed his wrongful termination lawsuit.   That changed this week with the filing of his first amended complaint.  It is fascinating document, both for the insight it gives into the man himself and for the small window it opens into the “tripartite relationship” between the State Bar, the Legislature and the Supreme Court.

First of all, Senator Joseph Dunn’s name is actually Senator Joseph Dunn.  I was always under the impression that use of these titles, especially after leaving office, was a matter of respect, what is called an honorific,  but apparently it has become part of his actual name, to judge from the caption.

Second, Senator (if I can call him by his first name) is sad.  In paragraph 10, he tells us that he has filed his first amended complaint “with a continued heavy heart.”   It is easy to see why.  Senator has been the victim of a cabal apparently orchestrated by the California Supreme Court to engineer his removal as ED (paragraph 4.)   That would make anyone sad.  Moreover, other members of the cabal have moved to retaliate against other State Bar employees to cover up the misconduct Senator blew the whistle on (alleged manipulation of backlog numbers), leaked a report that said bad things about Senator, and blocked the sale of the State Bar’s San Francisco building, a cause that is very dear to Senator’s heavy, heavy heart because he wants to do good things with all those millions.

 

Typically, we move from the sublime to the ridiculous, but here we will reverse order and discuss the really interesting issue underlying all this khazeray.   This is about much more than personalities.  It goes right to heart of the State Bar’s peculiar place serving two different masters (see Obrien v. Jones.)  Senator got his job because of his Sacramento political connections.  In the words of former State Bar President Bill Hebert, he was the “right man at the right time” to fix the State Bar’s poor relationship with the Legislature, in the wake of the State Auditor’s negative 2009 report on State Bar transparency, Gov. Schwarzenegger’s veto of the dues bill, the Governance Crisis (caps seem justified)   And so he did.

But the State Bar serves another master, one located in San Francisco, not Sacramento.  If the Senator is correct, someone there decided he was the wrong man at the wrong time..  Article VI, section 6  of the California Constitution, enacted by voter initiative, makes the Legislatively created State Bar a part of the judicial branch, reflecting the long standing relationship of State Bar as the administrative arm of the California Supreme Court (see e.g. In Re Attorney Discipline System, where the Court decided it could independently assess attorneys a fee to run the discipline system without Legislative involvement.)  While the levers of control that the Legislature exercises over the State Bar are relatively transparent,  the Supreme Court’s are virtually opaque. No one really knows what the Supreme Court says to the State Bar and who says it beyond everyone’s understanding that this is in Beth Jay’s wheelhouse.  Senator’s allegation that Beth Jay has been deeply involved in State Bar affairs in her capacity as principal attorney to the Chief Justice (paragraph 4) is correct but his legal conclusion this “interference” is “without constitutional, statutory or other authority”  is hard to square with Article VI, section 6, and Business and Professions Code section 6100 where the Legislature, at least obliquely, acknowledges the Supreme Court’s authority in this matter.

If true, what was the source of the Supreme Court’s disaffection with Senator?  The idea of moving the State Bar’s headquarters from San Francisco to Sacramento  seems especially important to him.  The consequences of such a move, including the probability of many  staff leaving the State Bar, creating an opportunity to recruit new staff under the Executive Director’s leadership.  It would also amount to literally moving the State Bar from the Supreme Court’s orbit to the Legislature’s turf.  The Supreme Court was not in favor of the scheme.  The California Supreme Court may also have been less than happy with Senator’s inclination to move discipline in a more punitive direction.

We can’t fully understand Senator’s pain.  As Pete Townshend reminded us, no one knows what its like to be the sad man behind blue eyes.

But if it is any consolation to Senator, he already has a place to land if his lawsuit doesn’t work out,  returning to the practice of law with his fellow Senators at The Senators Firm.   While it must be confusing to have several law partners with the same name, the Senators have the marketing advantage of invoking their government services in their very name, despite  Rule of Professional Conduct 1-400, Standard 6.  Senator Dunn is already touted on the website as “recognized as one of the country’s preeminent complex personal injury and consumer rights lawyers” before he dedicated himself to public service.   If Standard 6 gives them any trouble, they can afford to hire a good discipline defense lawyer and argue that it the discipline investigation was orchestrated by the cabal.

A specter has haunted the State Bar of California for thirty years.   I know him well.  He gave me my first job at the State Bar.   He has gone by many names but you might know him by a more modern handle, Transparency.

He came from the TNT room.  The TNT Room was the file room at the San Francisco office, so-called because it was so full of files that it was ready to explode.  During the mid 1980’s the State Bar had an investigation backlog of more than 4,000 files.  The TNT Room eventually made the news about thirty years ago and that press coverage launched a major reconstruction of the discipline machinery under the direction of Prof. Robert Fellmeth,

A small piece of the new machinery was a new entity called the Complainants Grievance Panel (former Bus. & Prof. Code section 6086.11.)  The Panel consisted of seven volunteers, four attorneys and three non-attorneys.  Their mission was to review closed investigations on request of a complainant, to randomly audit a sample of closed investigations and issue an annual report assessing the operations of the Office of Chief Trial Counsel (OCTC.)  The purpose was to keep OCTC honest as it went about clearing its massive investigation backlog,  making sure the investigation process was not given short shrift and to illuminate problems with the process, i.e, transparency.  A staff support unit was created within State Bar, burdened with the title Administrative Compliance Unit.  I went to work for it in March 1989. I helped draft three years of Panel reports that are now lost to history, along with untold numbers of other reports.  We documented serious deficiencies in the investigation processes of the State Bar that helped pave the way for the Alarcon Commission (1994) to recommend important changes to the operation of the State Bar.

The State Bar has been the target of a large numbers of studies through the years, yet can never rid itself of the Transparency Ghost.  No matter how closely it is studied, its core remains impenetrable.  Some of those studies have led in circles;  some of the recommendations of the Alarcon Commission were meant to fix recommendations of the Kroker Commission ten years prior.  The guiding principle seems to be if we study this institution closely enough we will eventually understand it and maybe eventually trust it.

But we always seem to meet with some new revelation that tells us we don’t really know what is going on.   Continue reading →

The reformed Rules Revision Commission had its initial meeting on March 27, 2015 and made news immediately with the disclosure of a letter written to the Commission by the California Supreme Court.  The Court asked the Commission to consider piecemeal additions to the current California Rules of Professional Conduct, and specifically the adoption of a specific rule on prosecutor misconduct (thank you to John Steele and Legal Ethics Forum.)  Such a rule exists now in ABA Model Rule 3.8, although it is unknown whether the Supreme Court specifically referenced that rule in its letter.  The ABA Model Rules based set of rules proposed by the former Commission included a version of Rule 3.8.  The Discussion Draft of that rule shows the California District Attorney’s Association opposing adoption of the California version of the rule and expressing the view that current California Rule of Professional Conduct 5-110 was adequate (see page 28) a view generally echoed by all the other District Attorney’s who commented.

The Supreme Court evidently disagrees (as did the first Rules Revision Commission.) Whether or not it sees, as Judge Kozinski does, an “epidemic of prosecutorial misconduct”, it perceives an ethics problem and it perceives State Bar discipline as part of the solution.  Didn’t the high court tell us just last September that that it perceived the California Rules of Professional Conduct primarily as a vehicle for discipline?

Events seem be crystallizing quickly, as they seem to do in the 21st century, toward an institutional response to the suddenly highly visible problem of prosecution ethics.   On April 9, 2015, the District Columbia Court of Appeals issued an opinion in a disciplinary matter finding that the ethical duties set forth in Rule 3.8 are broader than the disclosure duties imposed by Brady v. Maryland, 373 U.S. 83 (1963), and specifically rejected the respondent prosecutor’s argument that the lack of disclosure must be material, i.e. that there must a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial.  The most immediate backdrop is the continuing series of disturbing revelations regarding prosecutorial failures to disclose exculpatory evidences, including the revelation that resulted in disbarment and a jail sentence for a Texas judge, a former prosecutor, the every growing stream of exonerations of criminal defendants, and the highly publicized instances of alleged police misconduct that have shaken the image of the prosecutors’  close working partner in the criminal justice system.  Lurking somewhat deeper in the shadows is the decline in crime rates and the diminished (though still potent) strength of the “tough on crime” message in the political realm.  The cost and consequences of the “tough on crime” era are becoming clear; one of them appears to the creation of a “win at any cost” culture in our prosecution agencies that is at odds with the prosecutor’s duty to do justice.

The relationship between the lawyer discipline system and the criminal prosecutor is uneasy, to say the least.  Historically, the discipline system has never made prosecution of the prosecutors a priority.

The relationship between OCTC and the criminal prosecutors has always been close. Many OCTC personnel have law enforcement backgrounds, investigators and prosecutors, such as the Chief Trial Counsel, who was a United States Attorney; her predecessors were all former criminal prosecutors, with the exception of Scott Drexel and James Towery. The discipline prosecutors are required to forward information regarding criminal behavior to the criminal prosecutors and they have worked closely together on issues including the unauthorized practice of law.

While there may be reasons for making discipline of prosecutors a low priority in the past, the political context surrounding it has unraveled, rather suddenly and dramatically.

At the State Bar’s 15th Annual Ethics Symposium in April 2011, a heated exchange took place between former San Mateo District Attorney Jim Fox and representatives of The Innocence Project.  Both were invited to present after former Chief Trial Counsel James Towery (now Judge Towery) directed a senior State Bar discipline prosecutor to review claims by the Project regarding “claims that bar isn’t tough enough on prosecutors who violate the rules” in the words of the November 2010 California Bar Journal.  Less than two months later, Mr. Towery was forced out as Chief Trial Counsel, replaced with current Chief Trial Counsel Jayne Kim and Mr. Fox, who came out of retirement to become a consultant in the Office of Chief Trial Counsel (OCTC).   The evaluation of The Innocence Project claims never went forward.  Whether Mr. Towery’s willingness to at least examine those claims played a role in departure is unknown.  Mr. Fox was appointed to the State Bar Board of Trustees by the California Supreme Court after, by some accounts, management responsibilities OCTC’s San Francisco office somewhat more broad than those of a typical consultant.

Nevertheless, discipline cases against criminal prosecutors, formerly rare, have become less rare, especially when there has been finding by the criminal courts of misconduct.   The Ben Field case, initiated under the aegis of Scott Drexel in 2007, was a landmark event in this progression, a criminal prosecutor found to have violated his duty to have engaged in “a calculated scheme to hide evidence favorable to the defense” resulting in a four year actual suspension, a heavy hit for a decade long pattern of misconduct.  The California District Attorney’s Association (CDAA) filed an amicus brief in Mr. Field’s appeal to the Review Dept. arguing that several of the grounds for discipline involved questions of law that have not been settled. The Review Dept. did not address these arguments but found Field’s behavior sufficiently certain to find him culpable of a number of acts of moral turpitude.

If we are really in an ethics crisis, an epidemic of prosecutor misconduct, then we will should see more discipline prosecutions of criminal prosecutors, aided by whatever rule is ultimately approved by the California Supreme Court (which seems inevitable).  If we don’t, then we will be left to wonder:  Was the epidemic of prosecutor misconduct real or just the overworked imagination of overworked judges? Is the discipline system of the State Bar complicit in the creating a culture of tolerance for prosecutor misconduct?

Or did the rule itself deter prosecutor misconduct by focusing prosecutors on their ethical duties, on the possibility of professional discipline and thereby help create a culture in the prosecutor’s office emphasizing those ethical duties?  That last possibility would be ironic result given the Supreme Court’s discomfort with the “aspirational” use of the Rules of Professional Conduct.

Rumors of Senator Joseph Dunn’s firing as Executive Director of the State Bar of California were confirmed yesterday with release of a terse announcement from the Board of Trustees.  As shocking as that announcement was, even more shocking was the news that Senator Dunn had filed a complaint against the State Bar and State Bar President Craig Holden (sen.-joseph-dunn-v.-cal.-state-bar—complaint)  alleging wrongful termination based on his status as a “whistleblower” on alleged misconduct committed by Chief Trial Counsel Jayne Kim.

 

 

 

 

 

 

 

 

 

 

 

The State Bar has lurched from crisis to crisis over the last thirty years.  Some of the “highlights”:   The Chronicle news stories (1985), the implementation of the massive reforms led by Sen. Presley and designed by Prof. Fellmeth (1987-1991), the early conflict between the new full time State Bar Court and the Office of Chief Trial Counsel (OCTC) (1989-1995), the restructuring of those reforms by the Alarcon Commission (1994), the plebiscite over the State Bar’s very existence (1996), the resignation of executive director Rosenthal over conflict with the Legislature (1997), the veto of State Bar dues bill by Gov. Wilson and subsequent shutdown of the discipline system (1997-1998), the rebuilding of the discipline system (1999-2001), the introduction of appointments by the political branches to State Bar Court (2000-2001), mismanagement of OCTC during the Scott Drexel era and the growth of the backlog (2005-2009), the discovery of serious embezzlement by a State Bar employee (2009), the highly critical State Auditor’s report (2010), the “governance” struggle precipitated by SB 163 (2010-2012), the purge of OCTC management by Senator Dunn (2011), the backlog reduction project (2011), the Supreme Court’s rejection of stipulated decisions in the wake of the backlog reduction (2012) and the State Bar’s inability to implement a modern information technology system in OCTC (2014).

But this may well be the worst crisis ever for this troubled institution.  How can the public, the profession, the Legislature, and the Supreme Court, who relies on the State Bar as its “administrative arm” for discipline and admissions maintain any confidence in the State Bar after reading the allegations of Dunn’s complaint, whatever the truth ultimately turns out to be?  What new revelations will bubble up in the course of this litigation?

Yesterday was a dark day for the State Bar, maybe the darkest in its dark history.  But darker days may well be ahead.