State Bar Forging New Rule on Prosecutor Misconduct. Will It Ever Be Used?

In October 2010, newly installed Chief Trial Counsel James Towery (now Judge Towery of the Santa Clara County Superior County)  announced that his office,  the Office of Chief Trial Counsel, the State Bar’s discipline prosecutor,  would be taking a close look at a report from the Northern California Innocence Project  criticizing the  State Bar for taking no disciplinary action against  criminal prosecutors in a number of cases where the criminal conviction had been reversed.

We’re happy to see the report because it shines a light on something that deserves attention,” said Towery.  At the same time, he added, the bar is striving for a “balanced response.”

“On the one hand, there has been an historical underreporting and, as a result of that, underprosecuting of prosecutorial misconduct,” he said. “On the other hand, we know there are some flaws in the report.” Those flaws include the fact that early State Bar research indicates that a number of cases cited in the report involve minor violations of the rules and  do not rise to a level of discipline. Also, many instances of prosecutorial misconduct are never reported to the bar. “We’re looking at those which made a difference in trial and will weigh whether further investigation is warranted,” said Towery.

Mr. Towery charged an experienced discipline prosecutor in the State Bar’s San Francisco office with examining the Innocence Project report and determining whether any further action should be taken.

hide eviedence

At the April 2011 State Bar Ethics Symposium in San Francisco,  Maurice Possely, the journalist who was co-authored the report, squared off in a heated debate with former San Mateo District Attorney James Fox regarding the claims in the report.  Mr. Fox’s position was what you expect:  the report was exaggerated, unfair,  and irresponsible.

Shortly thereafter,  Mr.  Towery was forced out as Chief Trial Counsel.   Jayne Kim was named interim Chief Trial Counsel and  Mr. Fox was brought into the office, designated a management consultant, but according to State Bar insiders, essentially serving  as the manager of the San Francisco prosecution office.  Nothing further was heard from OCTC on the claims of  the Innocence Project. The ubiquitous Mr. Fox was later named to the State Bar Board of Trustees by the California Supreme Court in July 2014.

Among the recommendations of the Innocence Project was the  adoption of ABA Model Rule 3.8, setting forth the special duties of a criminal prosecutor.   In fact, a version of the rule had been drafted by the first Rules Revision Commission (RRC1) after much discussion and input from criminal prosecutors  and defense attorneys, and approved by the Board of Trustees in 2010.  The Supreme Court notified the State Bar that it was rejecting  all of RRC1’s work product in September 2014, including the rules like California’s first version of 3.8 that had never been sent to them.  It tells the State Bar to form a new rules revision commission, one that will formulate new rules of professional conduct, ones that will focus on changing the current rules to eliminate unnecessary differences with the rules in other states, with the goal that the proposed rules “remain as set of minimum disciplinary standards” that should avoid incorporating “purely aspirational or ethical considerations” present in the Model Rules and Model Rules Commentary.  Deadline for completion of this  new set of rules:  March 2017.

But the zeitgeist is shifting.  Ninth Circuit judge Kozinski decries an “epidemic” of prosecutor misconduct.  New Brown appointees Cueller and Kruger join the Supreme Court.  At some point,  lawyers associated with the Innocence Project,  Barry Scheck and Loyola Law School professor Laurie Levinson, write to the California Supreme Court suggesting that a professional rule on prosecutor misconduct is urgently needed.  In early 2015, the California Supreme Court writes to the State Bar and suggests that such a rule could be adopted on a “fast track” and considered more quickly and apart from the complete set of rules.

Kozinski

The State Bar’s Second Commission for the Revision of the Rules of Professional Conduct (RRC2)  has again tackled, at the strong suggestion of the California Supreme Court, a California version of Model Rule 3.8.   RRC2’s version, consistent with Supreme Court’s direction closely tracks 3.8, which has been adopted in some form in the other 49 states,  with the major difference being a more limited statement of the prosecutor’s responsibilities regarding extrajudicial statements, e.g. pre-trial  publicity.

Some new disciplinary rule on prosecutor misconduct will almost certainly be adopted and soon.  What happens then?

The reluctance of disciplinary authorities to prosecute criminal prosecutors has long been known.  The 2010 Innocence Project report found that only 10 criminal prosecutors had been subject to bar discipline between 1997 and 2009, and only six of the cases involved actual prosecutorial misconduct, all for withholding evidence, as opposed to discipline for other reasons (e.g. criminal conviction.)  Moreover, as noted in the report, all of these disciplines occurred after 2004, when the California Commission on the Administration of Justice was established.

This reluctance has been analyzed by one noted scholar of legal ethics.  Prof. Zacharias finds a number of reasons why State Bar’s might not be keen on prosecuting prosecutors, including limited resources and the fact that disciplinary authorities are focused on remedying attorney misconduct directed toward clients.

Historically, regulatory authorities have imposed discipline primarily on sole or small-firm practitioners who are uncontrolled by such internal constraints and are likelier to make “ethical decisions” by the seat of their pants. Similarly, disciplinary authorities tend to focus on intentional misconduct by lawyers whose actions are self-serving or governed by greed.Such misconduct often reflects a lawyer who is likely to commit additional violations, because the lawyer will continue to be influenced by personal incentives unless taught a lesson.

To put it bluntly,  criminal defendants have never been regarded as part of the “public” that we seek to protect with the charge the discipline system.  As an example, in my work as staff to the State Bar’s Complainants Grievance Panel  (1989 -1992)  we found that complaints from incarcerated persons were routinely closed with little or no investigation.  In another matter I handled as a discipline prosecutor, I was repeatedly told that we did not have enough evidence to move forward despite judicial findings that exculpatory evidence had been withheld.  This case ultimately resulted in discipline many years later.

Many of the staff in the Office of Chief Trial Counsel have law enforcement backgrounds, as police officers, investigators  or prosecutors;  our current Chief Trial Counsel spent some time in US Attorney’s office.  The office also works closely with law enforcement and the criminal prosecutors on many issues.  Not only Mr. Fox but other members of the Board of Trustees have criminal posecutor on their resumes.

nonetheless, the State Bar has become more willing to prosecute prosecutor misconduct in recent years,  the most notorious case being that of Ben Field.  Without the benefit of a specific prosecutor misconduct rule,  Mr. Field was  charged with acts of committing acts of moral turpitude (Bus. & Prof. Code section 6106) by various misrepresentations, withholding evidence, and showing lack of respect for the court,  failing to obey court orders requiring discovery,  and violating his duty under Bus. & Prof.  Code section 6068(a) to uphold the law by violating discovery statutes in the Penal Code.  In the years since Ben Field, there has been only one other prosecution of a prosecutor for withholding evidence, a case that resulted in a public reproval.

It is certainly a good idea to adopt a prosecutor misconduct rule.  But my experience and the example of Ben Field suggest that the problem is not so much a lack of the proper tools (that all-purpose Swiss Army Knife known as section 6106 and its only slightly less broad cousin section 6068(a), for instance)  but a lack of proper motivation.  That cannot be cured by a rule change.

Except to the extent that the fact of the rule change sends a strong signal from the top to potential offenders that this behavior we want you to change, that we want you to aspire to something greater.   That signal would seem to have been sent to the criminal prosecutors.

Will the Office of Chief Trial Counsel perceive the same signal?   There are at least two examples of high-profile rule changes that have led to almost no discipline prosecutions — current rule  3-120 Sexual Relations with Clients  (let’s call it the Mitchelson rule)  and current rule 5-120 Trial Publicity (let’s call it the  O.J. rule.)  I know of exactly one case involving the former and no cases involving the later.   Without a doubt, the rule change gives them a better tool.  History suggests it may not be used in a meaningful way.

Ironically, given the Supreme Court’s direction in September 2014, the only real value of the rule could be aspirational.

Pasternak’s Albini Gaffe Reveals a Disturbing Truth

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.

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.

When the Going Gets Tough, the Tough Do PR

Today’s Daily Journal reports that new State Bar Executive Director Elizabeth Rindskopf Parker,  the “leader of the embattled State Bar is considering contracting with a public relations firm to help the agency draw a greater focus to its public protection efforts and better address inquiries about the challenges it faces.”

Ms. Parker is far too savvy to think that hiring a PR firm will fix the image problem that the State Bar of California has.  She is, right?  Right?

Far too often is seems that the hiring of a PR firm is a another signpost of an individual or organizational reputational death spiral,  a move born of  desperation that might break the fall, but seldon prevents it.   The State Bar has struggled with an image problem for at least the last thirty years.and it all stems from its unique status as a regulator run by the regulated,  the old “fox in the hen house” theme that we have heard rep eated 10,000 times, most recently in highly refined form by Ed Howard of the Center for Public Interest Law.

fox-guarding-the-hen-house

If you only knew me, you would love me.

I have been hearing some variation on the “if you only knew about all the good things we do” argument concerning the State Bar for what seems like 30 years.   It is part of the bubble that lawyers, both individually and collectively as the Bar, live in.   We can’t understand why the public, the Legislature, the Governor, sometimes the Supreme Court doesn’t trust us, no matter how hard we try.   We know that we are  good, that we do good work for society, that we run a discipline system that in fact does a good job at policing misconduct.  So we can’t wrap our heads around the fundemental distrust of lawyers and the lawyer’s organization, the State Bar of California, fueled in part by a structure that give the most powerful profession a unique privilege.

PR won’t fix that.  Only changing the structure will.  The State Bar does need to tell its story but that story needs to re-written.

The Case Against the Chief — Elaborated

On December 21, the State Bar Board of Trustees will meet to consider the fate of embattled Chief Trial Counsel Jayne Kim.    Ms. Kim had the strong endorsement of new Executive Director Elizabeth Parker and new State Bar President David Pasternak for a second term as Chief Trial Counsel until a plurality of the union employees  in the Office of Chief Trial Counsel (OCTC) voted no confidence in Ms. Kim in an unprecedented plebiscite.    On November 20, two senior discipline prosecutors and union officers, Robin Brune and Erin Joyce, laid out the case against the Chief.

The allegations against the Chief Trial Counsel may seem opaque to those who have not spent time in the State Bar bubble.  They can be boiled down to four essential charges.  Those charges and commentary follow.  Of course,  while the Union has made its case against Jayne Kim public, she doesn’t have the same opportunity, so the case against her can only be evaluated by the Board of Trustees.   Certain facts on the ground cannot be denied, however.   The Office of Chief Trial Counsel is the biggest part of the State Bar’s operations and many if not most of the employees in that shop are upset enough to go public with their unhappiness.   This is all occurring while the State Bar is undergoing great scrutiny by the Legislature.

1.  The Chief Trial Counsel’s explanation for stipulations kicked back by the Supreme Court  is disingenuous;  she is seeking to blame staff and prior managers for levels of discipline that were set through her active direction.

In June 2011, former Executive Director Joseph Dunn forced out Chief Trial Counsel Jim Towery and later fired four of the five senior managers in OCTC.    Mr. Dunn then announced the goal of eliminating the OCTC  investigation backlog by the end of the year and that Jayne Kim, a former OCTC manager who had left the office in 2009 to work in the US Attorney’s office, would be appointed as interim Chief Trial Counsel.   It was announced in February 2012 that the backlog had been eliminated.  “Interim” was removed from the Chief Trial Counsel’s title and she was later confirmed by the California Senate.

In June 2012, the California Supreme Court announced that it was returning 24 stipulated dispositions to the State Bar Court for further consideration “in light of applicable discipline standards.  This had never happened before.  These were cases where the facts, conclusions of law and level of discipline had been agreed to by OCTC and the respondent attorney, and then approved by the State Bar Court. The Chief Trial Counsel then decided, after reviewing stipulations pending with the Supreme Court, to request the return of another 24.

The State Auditor’s report issued in June 2015 criticized the backlog reduction project as potentially placing the public at risk.   The report stated:

According to the chief trial counsel, a key factor that enabled the
State Bar to decrease its backlog in 2011 was its insufficient quality
control at a time when staff were trying very hard to meet what she
believed to be an arguably unrealistic goal. Specifically, when the
chief trial counsel assumed office in October 2011, she learned that
the State Bar did not require review by management, supervisors,
or peers before filing or settling cases.  She also described several
operational changes that the State Bar used to reduce the backlog
related to shifting staffing resources, which we discuss later in
this chapter.  Since assuming office, the chief trial counsel has taken steps
to monitor the backlog and to ensure quality control over
case processing. Specifically, she noted that the management
of the Office of the Chief Trial Counsel monitors the backlog
weekly and submits monthly reports to the Board of Trustees
(board). Furthermore, in late 2011 she began providing training
and development programs for State Bar staff, and in 2012 she
implemented a policy requiring managerial review of all decisions
on cases, including settlements. 

The Union alleges that Ms. Kim sought to distance herself from the backlog reduction project by suggesting that State Bar employees or the prior managers were responsible for the levels of discipline that the State Auditors report later concluded “may” have put the public at risk.   To the contrary, the Union says, the Chief was actively managing staff, with the only mandate being backlog reduction.  It is unknown whether the language from the Auditors report is the only basis for this allegation.  The impression Jayne Kim gave the Auditors is much different than the “there’s a new sheriff in town”  the State Bar was promoting at the time.  The Chief’s  statement to the auditor’s  that she believed  zero backlog was “arguably unrealistic” is impossible to square with her statement to the California Bar Journal in August 2011: “She was emphatic…that a zero backlog could be achieved. ”  Bus. & Prof. Code section 6079.5 provides the Chief Trial Counsel reports directly to the  Regulation and Discipline Committee of the  Board of Trustees and does not report to the Executive Director.   Did Jayne Kim communicate her opinion that the zero backlog  goal was unrealistic to RAD?  Apparently not, certainly not publicly.  Didn’t  she have a duty to?  The only conclusion possible is that Senator Joe Dunn was setting discipline policy for OCTC at the time, despite the language of section 6079.5.  Did she tell Senator Dunn that backlog reduction was arguably impossible?

From the viewpoint of defense counsel ,  OCTC was clearly settling cases in late 2011 for levels of discipline that it would not be settling for absent the zero backlog goal.   I recall Deputy Trial Counsel telling me in one case in late December that I better take the offer now because the price would go up after the first of the year.   This was done at management direction and was not the result of “poor quality control”  although no one apparently gave thought to the possibility that the Supreme Court might have a problem with some dispositions.   The truth is that the backlog has always been tied to settlement policy.  The shutdown of 1998 generated  a mountain of cases.  When we returned to work in 1999, the Early Neutral Evaluation Conference was instituted under the leadership of the special master Justice Lui  and OCTC’s policy was to agree with the State Bar Court’s judge’s evaluation in every case.   Former Chief Trial Counsel Mike Nisperos wanted settlement rates in State Bar Court to mirror civil court and the backlog fell.  Former Chief Trial Counsel  Scott Drexel perceived the Silverton case as direction for tougher discipline from the Supreme Court,  toughened settlement policy and backlog increased.

2.  The Chief Trial Counsel’s faulty interpretation of the Supreme Court’s remand has led to over-centralized management.  This has led to poor charging decisions, an overly harsh settlement policy, unnecessary trials and a number of cases lost at trial. 

This is consistent with the experience of many discipline defense counsel.  After the Supreme Court remand of the stipulated decisions, it became very difficult to settle cases.   The terse language of the remand order reconsideration in line with “applicable discipline standards” did not provide much guidance.  Most remanded cases did result in increased discipline;  OCTC and the State Bar Court both interpreted the remand as a direction for harsher discipline, as well as a better explanation for how the recommendation was reached.   Discipline charging and settlement decisions now  go through several levels of review;  Deputy Trial Counsel constantly remind us that they have no discretion even on minor issues;  even grammatical changes in written stipulations must be approved by management.

This is not new.  Centralization of decision-making began in the Drexel administration, where Jayne Kim served as an Assistant Chief Trial Counsel.   But it reached new levels after the 2012 Supreme Court action, along with a settlement policy that was clearly calculated to settle no case for a level of discipline that might later be questioned.  Many trials ensued, some that OCTC “lost” in the sense that they did not get the levels of discipline that they asked for.  But that wasn’t the point;  if political heat was to be had for a particular decision, it would be directed to the State Bar Court, not the Office of Chief Trial Counsel.   This, also, is not a new sentiment;  I heard it expressed in OCTC early in my career when that office was battling the first iteration of the full-time State Bar Court, headed by Lise Pearlman.

Statistics on cases “lost” at trial are not readily available.  Discipline defense counsel have urged the RAD Committee in the past to keep statistics on levels of discipline in support of our allegation of routine overcharging.  Those statistics, undoubtedly kept by someone, are not published.  Much anecdotal evidence supports the allegation that the State Bar Court has often recommended less discipline  than asked for by OCTC in recent years, including  an increasing number of cases where respondents are completely exonerated, something that used to be a rare event.

3.  The Chief Trial Counsel has saddled OCTC investigators  with an 90 day deadline to complete investigations and unreasonably large caseloads, up to 50 cases per investigator when 20 is optimal.  Performance improvement plans are  used when these time frames are not met.  The emphasis is on meeting deadlines, not quality investigation.

The relationship between OCTC and its corps of professional investigators has always been problematical.  In the 1980’s, the Kroker Commission recommended the creation of a separate Office of Investigations, with its own Director of Investigations, in part to address the lack of a career path for investigators at the State Bar.   Morale has always been a problem as investigators have perceived themselves as second class citizens in an organization run by attorneys.  The separate Office of Investigation was abolished  after the Alarcon Commission in the mid-1990’s found it be a waste and investigators were integrated into the Office of Trials, which became the Office of Chief Trial Counsel.   Many different schemes of organization have sought to fully integrate the investigation function and the prosecutorial function without full success..  Most recently, the director of investigation position was resurrected within OCTC and filled until recently by whistleblower John Noonan.  That position has now been eliminated and with it, Mr. Noonan’s employment after close to thirty years of State Bar service.

The allegation that the investigation process is more concerned with deadlines than quality is one that has been made by discipline defense counsel for a long time.  Large caseloads are not new either, although the large numbers of complaints received during the Loan Mod Wars were new.  Those numbers have now returned to something that could be called normal, roughly 2008 levels  (see 2014 Annual Discipline Report, at page 16.)

The Union is surely correct that a mandate that investigations be completed within 90 days is difficult to achieve in many cases, and often due to factors beyond the investigator’s control.  The use of Performance Improvement Plans (PIP) to enforce these deadlines is a source of special irritation; PIPs are the first step toward discipline.

4.  The Chief Trial Counsel has supplied inaccurate information to RAD,  including removing State Bar Investigations from metrics supplied to RAD in September 2013, misrepresenting the existence of an investigator mentoring program , referring to a “phantom” law enforcement liasion program that did not exist and representing that OCTC was pursuing immigration fraud by non-attorneys when it has not.

State Bar Investigations (SBI) are investigations opened by the Office of Chief Trial Counsel on its own initiative, usually without a complaint from anyone. The allegation that the Chief Trial Counsel manipulated backlog numbers to omit SBIs was part of Senator Dunn’s whistleblower complaint.  The balance of the allegations are new and this reporter has no insight into them beyond the obvious:  the Union is attempting to paint a portrait of an untrustworthy executive in charge of the State Bar’s biggest operation.

directions

Personality is an issue here.    I was Jayne Kim’s first manager when she came to the State Bar after a brief career in the public defender’s office.   There is no doubt that she is very smart, very hard-working and very ambitious.  There is also no doubt that she has  the kind of hard-driving personality that can rub many people the wrong way.   You might be right if you argued, as some have to me, that sometimes a ramrod is needed, that complacency must be shaken up.  But where past Chief Trial Counsel have inspired loyalty, the current Chief Trial Counsel has inspired hatred.  There are many circumstances underlying this phenomenon but there it is.  Senator Joe Dunn hovers like a ghost over the whole affair;  indeed, the Union begins its argument by invoking the ongoing litigation over Dunn’s firing and asking whether it would be better just to put all this behind us?   For good or for ill, Jayne Kim and Joe Dunn are inextricably linked, first, due to her perceived status as his protegé, and second, over their conflict and the still unclear role that it played in Senator Dunn’s firing.

The new senior executive team, new director Elizabeth Parker, and the new Board of Trustees were undoubtedly hoping that they would not have to go through the difficult task of choosing a new Chief Trial Counsel.  But how does the State Bar go forward with Jayne Kim as Chief Trial Counsel with so much apparent hostility directed from the people who have to actually do the work?  If it chooses to, the much heralded legerdemain of the new senior management team will be put to the test.

The Case Against The Chief

Erin Joyce and Robin Brune, veteran prosecutors in the Office of Chief Trial Counsel, lay out the case against  Chief Trial Counsel Jayne Kim:

Last week, another veteran State Bar employee, investigator John Noonen, was fired.   Noonen had filed a “whistleblower” complaint against the Chief Trial Counsel.  Noonen is represented by Mark Geragos, who also represents Senator Joseph Dunn, whose wrongful termination lawsuit is headed to arbitration.