Wednesday, December 11, 2002
State Bar’s Discipline Process Criticized at Hearing
By ALLISON LOMAS, Staf Writer
Local attorneys who defend lawyers facing State Bar discipline criticized the organization’s process yesterday as unfair and inefficient, and its prosecutors as overly zealous.
Susan L. Margolis told the six-member panel led by State Bar President James Herman, during its annual Southern California hearing on the attorney discipline , that prosecutors of the State Bar of California have misused a Drug Court Pilot Program, created by legislation authored by state Sen. John Burton, D-San Francisco.
Margolis said Burton intended to address the underlying issues that caused the misconduct while avoiding the costly discipline process, but that in practice lawyers are forced to commit to five years of treatment through the State Bar’s substance abuse program at their own expense, with punishment being merely postponed.
She said the requirement that lawyers sign a binding stipulation in order to be eligible for drug court allows prosecutors to include charges that are not supported by evidence. Lawyers are left with the choice of accepting the additional unsubstantiated charges or being cast as in denial, uncooperative, dishonest and inappropriate for admission into the program, Margolis said.
Margolis, who was a State Bar prosecutor for several years before going into private practice, objected to rules that she said give overzealous prosecutors in the Office of the Chief Trial Counsel veto power over an attorney’s ability to participate in drug court.
Panelist Scott J. Drexel, the administrative officer and chief court counsel, denied that any judge at the State Bar Court had witnessed a prosecutor interfere with a defendant being admitted to drug court.
Chief Trial Counsel Mike A. Nisperos Jr. also responded to Margolis’ allegations with a blanket denial.
Nisperos, who sat on the panel at yesterday’s hearing, explained during a telephone interview that the potential for abuse is curtailed by his personal oversight over all cases involving drug court. The chief trial counsel said he attends weekly meetings to discuss and review these cases.
In response to the charge that his office was pushing lawyers into the Lawyer Assistance Program and then punishing them despite their recovery, Nisperos asserted that since the beginning of the drug court Pilot Program on Oct. 1 approximately 20 lawyers have been “truly diverted” — that is, they did not participate in the Assistance Program and no charges were brought against them, with the understanding that they would seek treatment for the addiction that prosecutors saw as the cause of the misconduct.
Those lawyers who are admitted into drug court agree to a range of reduced discipline to be meted out when they have completed their treatment. Contrary to Margolis’ assertions, these lawyers may undergo any approved treatment and are not limited to the Assistance Program.
Ellen Pansky of Pansky & Markle in South Pasadena attacked the State Bar’s attorney discipline process as “inefficient,” “wasteful” and “punitive against lawyers.”
The former deputy trial counsel said many State Bar assets were being wasted by overly adversarial prosecutors who look to disbar attorneys for even the smallest ethical breach.
Panksy suggested that the State Bar has blocked members of the attorney defense bar from participating in the drafting of new rules and regulations. The private practitioner implored the panelists to take advantage of the years of experience and insight that defense attorneys possess to help them establish “fair and objective” rules.
Both Margolis and Panksy are members of the Attorney Discipline Defense Counsel, an unincorporated bar association for lawyers who specialize in State Bar defense and other State Bar proceedings. The group has been in existence for about five years, its President attorney Erica Tabachnick said.
Silk Alderette, a law student, also spoke to the panel. She asked the State Bar to enforce rules regulating attorneys’ duties to opposing counsel, the court, and third parties with the same vigour as they enforce duties to clients.
Special Assistant to the Executive Director Francis Bassios and Senior Executive of Admissions Jerome Braun also were on the panel, and Director of Competence Programs Randall Difuntorum participated via telephone.
Copyright 2002, Metropolitan News Company