REFORM PROPOSALS
Below are proposals for continued reform of California's attorney regulation system, with special attention to its public protection and discipline functions. I hope that the current generation of California lawyers, legislators, Bar Board members, and the California Lawyers Association will embrace and champion these changes:
#1. MOVE THE BAR DISCIPLINE PROSECUTORS OR STATE BAR COURT TO ANOTHER ORGANIZATION.
The State Bar Court and prosecutors are still part of the same organization and on the same payroll; meanwhile, the Bar has a history of repeatedly finding itself under pressure to increase discipline statistics to avoid the threat of budgetary shut-offs by an unhappy legislature or governor. The Bar judges still remain on contracts under which the recommendations of the State Bar (which is a prosecution-oriented organization) play a significant role in whether the judges' contracts will be renewed. I therefore continue to recommend that the Bar judges be transformed into full Superior Court judges who, once seated, become answerable directly to the public. Prof. Fellmeth's alternative recommendation of placing the prosecutors under the Attorney General's Office would also be a vast improvement.
#2. REPEAL CALIFORNIA BUSINESS & PROFESSIONS CODE 6086.10: RECOVERY OF "DISCIPLINE COSTS"
This provision of California law allows the State Bar to charge attorneys set fees for having their discipline cases prosecuted and adjudicated. The fee increases for each step that a case advances in the system, according to a fixed pricing menu that is adjusted regularly for inflation. For example, if a case settles quickly before the filing of charges, the attorney will be charged a fixed fee of $2,788.00. If a case runs the entire gamut into the Review Department, the cost is $22,796.00. The accused attorney must pay the full fee if there is any form of public discipline, even if that discipline is substantially lighter than what the prosecutors had demanded in settlement or at trial.
When a legislator had first proposed this law, the California Supreme Court and State Bar Board actually came out against it. The legislature enacted the law anyway, and then the Bar prosecutors found it a useful tool for extracting inaccurate and prosecution-slanted confessions from financially vulnerable lawyers, especially solo practitioners and small-firm attorneys. This contributed to the environment of overcharging that even prosecution attorneys came to complain about in 2015. (See my letter on the homepage of this site and linked YouTube video.)
In a court case challenging the fee assessments, the State Bar stated that recovered cost assessments constituted only a very minor part of the Bar's budget, and therefore the assessments were not an incentive for the Bar in its handling of discipline cases. The vast majority of the budget comes from Bar dues collected annually from all its members. This is all indeed true, but still slightly disingenuous. There have been instances in recent years when the Bar Board found itself a little tight on money, and determined that being more aggressive in collecting cost assessments (including from lawyers who had been disbarred) would help ease a shortfall. This contributed to a tendency in some Bar leaders to overlook overcharging because it led to more cases going further within the system when irate lawyers wanted their "day in court". That "day in court," even if the lawyer was successful in obtaining lighter discipline and/or a more accurate factual write-up, meant higher fees to the Bar (as of 2019, the amount was $18,636 for a multi-day trial).
The Bar and legislature should revisit this law and realize that it has no "rehabilitative" value. The actual effect was to produce a higher percentage of inaccurate factual write-ups attached to "stipulations" that weaker attorneys succumbed to. All of this merely contributed to wider member distrust of the State Bar as these stories got around.
So, repeal it, and let both parties pay their own fees and costs in discipline cases as had been done before.
#3. CONDUCT A CLEAN-UP PROGRAM OF PAST INJUSTICES.
The State Bar has not apologized or done anything to set things right for specific individuals who had been unfairly mauled by the discipline system in the past. The inaccurate discipline write-ups from such cases remain posted on the Bar's website and continue to act as ongoing defamation. There is apparently a concern within the Bar that to confess in hindsight that certain individuals had been treated unjustly might bring a risk of damages claims from those whose lives had been devastated, and who continue to suffer socially and financially from the Bar's ongoing publication of exaggerated discipline write-ups from the Bar's "bad old days". A clean-up program should be instituted by the Bar's Board of Trustees with the backing of the CLA and California Supreme Court.
#4. DO NOT REQUIRE INCOME TAX RETURNS IN PETITIONS FOR REINSTATEMENT.
When a lawyer petitions to be reinstated to the practice of law after a disbarment, resignation, or significant suspension, the petitioner is required to provide the Bar with the last three years of federal income tax returns.
Income tax returns are generally treated to privacy protections. The Bar's requirement is an invasion of that privacy given that such disclosure is not required when someone first applies to become a lawyer in California. The fact that reinstatement petitions are generally opposed by the Bar's prosecutor's office can cause a petition to wind up in State Bar Court which is inclined toward public openness, thereby posing a risk that someone's income tax returns could fall into the public domain. The Bar's past track record of discipline abuse, as well as its history of tumultuous comings-and-goings of discipline prosecutors and leaders, further makes disclosure inadvisable.
The Bar already has tools to determine whether a reinstatement petitioner has exhibited good moral character in the several years prior to the petition. The Bar is able to run criminal background checks and rap sheets. It can access databases to determine if the petitioner was, or is, involved as a party in any lawsuits, including whether the petitioner filed for bankruptcy. The Bar can obtain a full credit report on the petitioner to determine if their are any defaults on debts. That's plenty.
#1. MOVE THE BAR DISCIPLINE PROSECUTORS OR STATE BAR COURT TO ANOTHER ORGANIZATION.
The State Bar Court and prosecutors are still part of the same organization and on the same payroll; meanwhile, the Bar has a history of repeatedly finding itself under pressure to increase discipline statistics to avoid the threat of budgetary shut-offs by an unhappy legislature or governor. The Bar judges still remain on contracts under which the recommendations of the State Bar (which is a prosecution-oriented organization) play a significant role in whether the judges' contracts will be renewed. I therefore continue to recommend that the Bar judges be transformed into full Superior Court judges who, once seated, become answerable directly to the public. Prof. Fellmeth's alternative recommendation of placing the prosecutors under the Attorney General's Office would also be a vast improvement.
#2. REPEAL CALIFORNIA BUSINESS & PROFESSIONS CODE 6086.10: RECOVERY OF "DISCIPLINE COSTS"
This provision of California law allows the State Bar to charge attorneys set fees for having their discipline cases prosecuted and adjudicated. The fee increases for each step that a case advances in the system, according to a fixed pricing menu that is adjusted regularly for inflation. For example, if a case settles quickly before the filing of charges, the attorney will be charged a fixed fee of $2,788.00. If a case runs the entire gamut into the Review Department, the cost is $22,796.00. The accused attorney must pay the full fee if there is any form of public discipline, even if that discipline is substantially lighter than what the prosecutors had demanded in settlement or at trial.
When a legislator had first proposed this law, the California Supreme Court and State Bar Board actually came out against it. The legislature enacted the law anyway, and then the Bar prosecutors found it a useful tool for extracting inaccurate and prosecution-slanted confessions from financially vulnerable lawyers, especially solo practitioners and small-firm attorneys. This contributed to the environment of overcharging that even prosecution attorneys came to complain about in 2015. (See my letter on the homepage of this site and linked YouTube video.)
In a court case challenging the fee assessments, the State Bar stated that recovered cost assessments constituted only a very minor part of the Bar's budget, and therefore the assessments were not an incentive for the Bar in its handling of discipline cases. The vast majority of the budget comes from Bar dues collected annually from all its members. This is all indeed true, but still slightly disingenuous. There have been instances in recent years when the Bar Board found itself a little tight on money, and determined that being more aggressive in collecting cost assessments (including from lawyers who had been disbarred) would help ease a shortfall. This contributed to a tendency in some Bar leaders to overlook overcharging because it led to more cases going further within the system when irate lawyers wanted their "day in court". That "day in court," even if the lawyer was successful in obtaining lighter discipline and/or a more accurate factual write-up, meant higher fees to the Bar (as of 2019, the amount was $18,636 for a multi-day trial).
The Bar and legislature should revisit this law and realize that it has no "rehabilitative" value. The actual effect was to produce a higher percentage of inaccurate factual write-ups attached to "stipulations" that weaker attorneys succumbed to. All of this merely contributed to wider member distrust of the State Bar as these stories got around.
So, repeal it, and let both parties pay their own fees and costs in discipline cases as had been done before.
#3. CONDUCT A CLEAN-UP PROGRAM OF PAST INJUSTICES.
The State Bar has not apologized or done anything to set things right for specific individuals who had been unfairly mauled by the discipline system in the past. The inaccurate discipline write-ups from such cases remain posted on the Bar's website and continue to act as ongoing defamation. There is apparently a concern within the Bar that to confess in hindsight that certain individuals had been treated unjustly might bring a risk of damages claims from those whose lives had been devastated, and who continue to suffer socially and financially from the Bar's ongoing publication of exaggerated discipline write-ups from the Bar's "bad old days". A clean-up program should be instituted by the Bar's Board of Trustees with the backing of the CLA and California Supreme Court.
#4. DO NOT REQUIRE INCOME TAX RETURNS IN PETITIONS FOR REINSTATEMENT.
When a lawyer petitions to be reinstated to the practice of law after a disbarment, resignation, or significant suspension, the petitioner is required to provide the Bar with the last three years of federal income tax returns.
Income tax returns are generally treated to privacy protections. The Bar's requirement is an invasion of that privacy given that such disclosure is not required when someone first applies to become a lawyer in California. The fact that reinstatement petitions are generally opposed by the Bar's prosecutor's office can cause a petition to wind up in State Bar Court which is inclined toward public openness, thereby posing a risk that someone's income tax returns could fall into the public domain. The Bar's past track record of discipline abuse, as well as its history of tumultuous comings-and-goings of discipline prosecutors and leaders, further makes disclosure inadvisable.
The Bar already has tools to determine whether a reinstatement petitioner has exhibited good moral character in the several years prior to the petition. The Bar is able to run criminal background checks and rap sheets. It can access databases to determine if the petitioner was, or is, involved as a party in any lawsuits, including whether the petitioner filed for bankruptcy. The Bar can obtain a full credit report on the petitioner to determine if their are any defaults on debts. That's plenty.
Contents of this website copyright (c) 2019 by Tore B. Dahlin. All rights reserved.
Permission is given to freely quote from the contents of this website with attribution to www.calreform.org.
Permission is given to freely quote from the contents of this website with attribution to www.calreform.org.