Tuesday, May 3, 2005
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Audit Cites State Bar Discipline System Shortcomings
By a MetNews Staff Writer
The State Bar of California’s discipline system failed to reduce its backlog in a two-year period and needs to take stronger action to improve its efficiency, a state audit has concluded.
In a cover letter addressed to Gov. Arnold Schwarzenegger and other state officials, Auditor Elaine M. Howle noted last week that the backlog of discipline cases, which dropped from 1,340 at the end of 2000 to 401 at the end of 2002, rose to 402 by the end of 2004.
While the bar, in response to a prior audit, implemented a checklist for use in processing discipline cases, Howle said, “its staff did not always use the checklist and it is not sufficiently comprehensive.” The bar also “adopted a policy to spot check open disciplinary cases to ensure that staff are maintaining files properly and handling complaints correctly” but “did not consistently perform the requisite number of spot checks and sometimes failed to document the results,” Howle concluded.
She added that the bar’s recovery of discipline costs “remained low” despite changes in state law last year which gave it increased power to recoup such costs. The bar has been unable to take advantage of the law’s provisions because it is “waiting for approval of certain administrative procedures by the California Supreme Court,” Howle explained.
“Therefore,” she wrote, “to subsidize these costs, it used a larger portion of the membership fees it collected than it would have if its recovery rates were higher.”
In a formal response attached to the audit, bar officials said they agreed with all of the recommendations and will “develop plans to address them promptly.”
The bar’s response noted that the backlog of cases rose to 540 cases at the end of 2003 before falling again by the end of last year. That spike was primarily a result of investigations into complaints involving the Trevor Law Group, the response said.
Trevor attorneysócharged with multiple ethical violations based on their handling of unfair business practice claims against thousands of small businessesówere placed on involuntary inactive status and eventually chose to resign from the bar rather than face discipline.
“Notwithstanding fluctuations in the size of the backlog in 2003 and 2004, the average age of all State Bar disciplinary investigations has declined significantly,” the bar asserted in its response to the audit. “In 2002, 32.5% of investigation cases were more than six months old, while in 2004, only 21.9% of investigation cases were over six months old.”
The response said that under new Chief Trial Counsel Scott Drexel, whose appointment became effective last month, “a specific policy directive regarding the use of a single comprehensive checklist in all cases will be issued.” The checklist will replace several currently used documents such as an intake sheet and an investigation reminder, the response explained.
Drexel will also make the “policy of spot-checking active disciplinary cases more specific and will require team leaders or others conducting the spot checks to document the results of their reviews,” the response said.
In both 2002 and 2004, the audit reported, the State Bar’s complaint intake unit received over 14,000 inquiries. In each year, 62 percent were closed without discipline while about a quarter were referred for further investigation.
The remainder were resolved short of discipline, sometimes because the attorney involved resigned from the bar.
Of the complaints investigatedóabout 4,500 each yearóabout 60 percent were resolved without discipline each year while between 20 and 25 percent resulted in charges being filed, with the rest being closed as a result of “alternative resolutions” or attorney resignations.
The audit noted that amendments to Business and Professions Code Secs. 6086.10 and 6140.5, which became effective in January of last year, allow the State Bar obtain money judgments against lawyers for discipline costs or to reimburse payments made from the Client Security Fund, which compensates clients harmed by attorney misconduct. But the bar cannot take advantage of those provisions until amendments to the California Rules of Court, which it proposed in February, are approved by the state Supreme Court, the auditors said.
In its response, the bar said it has already initiated two “pilot projects” to “test its collection efforts.”
Under one pilot project, the response said, the bar has “authorized its outside collection counsel to initiate civil actions against a list of attorneys owing moneys to CSF, including 54 of the top 100 individuals owing the most in disciplinary costs.”
Under the second pilot project, demand letters are being sent out to disciplined attorneys “targeting those with the most recent awards of disciplinary costs,” the response explained.
“[W]hen the proposed procedures in the California Rule of Court are approved, money judgments will be entered,” the response continued. “This second pilot project includes 9 of the top 100 individuals with the most unpaid disciplinary costs. The State Bar is in the process of sending demand letters to the remaining individuals owing the most in disciplinary costs, to gather additional comparative data.”
Copyright 2005, Metropolitan News Company