Audit Finds California State Bar Failing in Its Job to Discipline Lawyers

In fact, the state auditor found the bar has actually gotten worse at investigating and disciplining attorneys since a massive reorganization aimed at making it more efficient.

Seal of the State Bar of California.

(CN) — The California State Bar’s failure to do an efficient or effective job of investigating and disciplining delinquent attorneys has allowed those who abuse the public trust to continue practicing law while their cases wend their way through the system, the state auditor found.

For reasons the bar could not adequately explain, its backlog of unresolved discipline cases increased 87% and its case processing times increased 56% from 2015 through 2020, auditor Elaine Howle found, even as it started to prioritize more serious cases in 2018.

“These delays allow attorneys under investigation to continue practicing law while their cases are pending, increasing the potential for harm to the public,” Howle wrote. 

Howle’s report partially attributes the lackluster showing to an overhaul of the bar’s disciplinary staff. Investigators and attorneys who once specialized in specific categories of cases were converted to generalists as part of 2016 workforce plan developed with help from the National Center for State Courts.

The bar also moved 11 senior attorneys with full caseloads into supervisory positions, reducing the number of staff available to handle cases.

Howle said the reorganization not only failed get better results, it didn’t address the issues that prompted her to start reviewing the state bar’s discipline system in the first place.

Furthermore, Howle said the state bar cannot tell what effect the changes have had because it does not effectively monitor staff performance. 

“The increase in the backlog and the time to complete investigations, despite the decline in discipline, indicate that the state bar’s reorganization has not improved its efficiency or effectiveness,” Howle wrote.

A backlog is defined as cases that remain pending six months after receipt as of Dec. 31, though state bar higher-ups complained this isn’t a good measure since the federal government is slow to provide necessary documents. Nevertheless, the state bar failed to set its own targets for resolving cases. 

While the bar said it doesn’t have enough staff to reduce workload, Howle reiterated a suggestion from her 2015 audit that it first set a backlog goal and figure out how many more attorneys it needs to hire to meet that goal before it asks the Legislature for more money.

“If the state bar were assessing its staffing against an appropriate goal as state law requires, it could better justify its requests for the additional resources it believes it needs,” she said.

Howle also found that while the bar did an effective job of administering the bar exam remotely in October 2020 during the Covid-19 pandemic, it failed to justify why it signed multimillion-dollar agreements with remote proctoring company ExamSoft.

California law requires the state bar to obtain three competitive bids for technology-related products and services over $100,000. The agency invoked an exam-related exemption in signing its first five-year, $3 million deal with ExamSoft in May 2020. Then it spent another $830,000 for identity verification and recording services for just the October 2020 exam. It signed an additional $1.3 million deal for ExamSoft to remotely proctor the February 2021 exam.

The state bar acknowledged it did not document whether ExamSoft provides the best value for the money, which contravenes its own contracting policies.

“Until it enforces these policies, the state bar risks engaging in the kinds of practices that its general procurement manual is meant to prevent, such as failing to determine whether more cost‑effective alternatives exist,” Howle said.

The state bar said it mostly agrees with Howle’s recommendations, but quibbled with some of her findings about the Office of Chief Trial Counsel and attributed its poor disciplinary numbers to a higher volume of complaints. 

“OCTC’s work is largely complaint driven and as a result, the rate at which complaints are submitted drives OCTC’s workload. Starting in July 2018, complaints increased substantially. In October 2018, when the state bar launched an online complaint portal, which allowed people to file a complaint online for the first time, complaints rose yet further,” the bar’s response letter says. “Overall, in 2018 and 2019, the number of complaints increased by 4% and 5%, respectively, and OCTC managed that increased volume with largely the same resources it had before the increase.”

While complaint rates decreased after 2018, the bar says the brief surge skewed case-processing time between 2018 and 2019.

As for the ExamSoft contract, the state bar says it has already added a “best value analysis” to its procurement policy.

In a statement, interim state bar director Donna Hershkowitz said the bar believes the approach used to measure the state bar’s effectiveness at protecting the public needs to change. The focus and priority should be on cases that pose the most harm to the public, rather than on the oldest cases.

“The state bar welcomes and agrees with the California state auditor’s recommendations and plans to implement virtually all of them, and indeed has already implemented some of them. Most importantly, the state bar agrees with the auditor that reform of the statutory metric used to assess how effectively the state bar protects the public through the attorney discipline system is in order,” Hershkowitz said. “We look forward to working with the Legislature on this important goal.”

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