SAN FRANCISCO (CN) – In the wake of a scathing critique of California’s court bureaucracy, trial judges have targeted the General Counsel’s Office within that bureaucracy as inefficient, overstaffed and out of line.
The general counsel, Mary Roberts, has been the focus of criticism over the hiring decisions and practices of her office, which allow a number of lawyers to work from home. She is also referred to indirectly by the judges who wrote last week’s 221-page analysis.
“It is appropriate to question the effectiveness of the management of the Office of the General Counsel,” said the report from 11 judges on the Strategic Evaluation Committee.
Not unlike the difficulty encountered by the committee in getting a fix on the overall staff size at the administrative office, the sum of lawyers working for the general counsel has proven to be a slippery and elusive figure.
In a related matter, the general counsel’s office hired another lawyer earlier this year despite a hiring freeze. The new lawyer formerly worked at the same law firm as general counsel Roberts and replaces a retiring lawyer who also worked at the same firm at the same time.
The hire was made without a public posting.
In addition, as the judges’ committee pointed out, the general counsel is acting as a “gatekeeper” to the governing Judicial Council taking on the role of policy maker. They recommended that the general counsel return to the role of legal advisor following a “customer service model.”
But even in the traditional role of writing legal opinions, the general counsel’s office came up short. The judges criticized the slow work pace, and noted that many of the staff lawyers work from home.
The judges’ committee also asked for an investigation into the fact that the lawyers in the general counsel’s office — enough to make up a “powerhouse law firm” — refuse to set foot in an actual courtroom. They outsource that work to private firms, often expensive, top-of-the-line, business litigation firms.
Hired During a Freeze
When retired Los Angeles judge Charles Horan asked recently how the new lawyer was hired, Chad Finke who directs the administrative office’s court services division replied, “Rebecca Kleinman worked as an associate attorney (1989-1991) at the law firm at which Mary Roberts was a partner.”
He went on to say the new lawyer was hired based on an “exemption” to the hiring freeze.
“An exemption to the AOC hiring freeze was granted in January 2012 in light of a longstanding vacant attorney position in OGC’s Labor and Employment Unit and the anticipated retirement of a senior attorney in that unit. Ms. Kleinman was hired pursuant to the authorized exemption in light of her over 24 years of law practice in employment law, traditional labor law, litigation, and litigation management.”
The AOC’s spokesman refused to provide a resume for Kleinman, directing a reporter to make an official request for public information instead, a process that takes weeks or months.
He had the same response to a request to confirm the private firm where general counsel Roberts had worked, also referring that question to the process for requesting public information. Roberts herself returned a call to say she had worked at Corbett & Kane which later merged into Crosby Heafey Roach & May, a 200-lawyer Oakland firm.
Meanwhile, a trip to San Francisco’s law library — behind city hall and above a theatre, with fluorescent lighting and aging carpets — shows that while Kleinman became a lawyer 24 years ago, she moved firms frequently, dropped out of active practice on two separate occasions, and at one point worked for herself.
She first worked at Corbett & Kane from 1989-1991, a small, boutique firm of 12 lawyers based in Oakland. She worked for Seyfarth Shaw in 1992 and Arnold Laub in 1996.
A bound volume of Martindale Hubbell in the law library for 1999 shows that she worked for herself in that year. Bar records show that late in that same year, she became inactive.
She returned to active status in 2001 but there are no records in Martindale Hubbell showing employment. Bar records show she again dropped out of active practice in 2008, only returning to active status in October 2011.
Kleinman was hired five months later by Roberts, in February of this year, to replace Tim Emert, a “senior attorney” with a job that pays $134,000 a year. Kleinman’s pay will be about $119,000 a year.
Emert, Kleinman and Roberts all worked together from 1989 -1991 at the 12-lawyer firm of Corbett & Kane.
A staff member at the AOC, speaking not for attribution, said that Emert had only worked five years, long enough to vest in the office’s generous pension plan. The AOC’s spokesman declined to say how long Emert had worked for the AOC and refused to say whether he had received a pension, referring both questions to the weeks-long procedure for requesting public information.
Raising a concern among trial judges, Kleinman’s hiring earlier this year was done without a public posting. In his correspondence with retired Judge Horan, court services director Finke said the position was not posted anywhere and there were no other applicants for the job.
“No, there was no posting,” Finke conceded.
Horan said in an interview, “They swore up, down and sideways that there was a hiring freeze on and that they were downsizing, and they are hiring an attorney without the public knowing about it.”
The failure to publicly post the job opening appears to have been a way to keep the matter quiet, said Horan. “It appears this was done in such a way as to preclude the public from becoming aware of it.”
The personnel manual for the administrative office says specifically, “Generally, job openings are announced to current AOC employees and to the public in order to reach a wide range of qualified applicants. The AOC conducts recruitment in an effort to promote a diverse pool of qualified applicants.”
Hiring the lawyer without public notice, said Horan, “appears to be in contravention of the AOC’s own policy.”
In their report, the judges said the administrative office should reduce its staff to somewhere between 680 and 780, which would represent a cut of roughly a third from the office’s staff size of 1,100, a number extracted by the committee after a struggle with the administrators.
The head of the state Assembly’s Judiciary Committee, Mike Feuer, also said in budget hearings recently that the administrative office needs to cut more staff.
A Greased Number
As it was for the judges’ committee in trying to get a fix on the overall staff size at the AOC, so it is that the number of lawyers working for the general counsel’s office is a slippery one.
The committee of judges says the office has “over 50 lawyers.”
A spokesman for the administrative office says the office has “43 attorneys on staff.”
Matching up bar records with a personnel list for the AOC yields yet another number — 46 lawyers.
But a much larger group of lawyers work for the administrative office as a whole.
“The sheer number of attorneys in the AOC is eye-catching,” said the judges’ report. “In addition to the approximately 50 attorneys in the OGC division, there are nearly 50 employed in other divisions. Thus, the total number of attorney positions in the AOC is close to 100, or approximately one-tenth of the total AOC workforce.”
The administrative office’s spokesman argued that many of the lawyers on the staff may not work as lawyers.
“If you really wanted to know how many happen to be lawyers, we would have to survey the personnel records for all AOC employees as well as survey all AOC employees to find out how many happen to be lawyers,” wrote spokesman Philip Carrizosa. “In that instance, you should file a public records request.”
Matching up bar records with the list of all AOC employees shows a total of 91 “active” lawyers working at the administrative office. The list of employees is the most recent full list of staff made publicly available and is current as of July of last year.
The bar’s designation of “active” means a lawyer has paid the high dues required when a lawyer gives legal advice and holds himself or herself out as a practicing lawyer. Members of the bar who are not currently practicing law generally designate themselves as “inactive” and pay a greatly reduced membership fee.
The judges’ committee and individual trial judges have noted that with all that firepower, the general counsel’s office is very shy about actually setting foot in a courtroom.
Among the options held by the administrative office, one is to send its own well compensated and active members of the bar to argue before a judge or jury.
A second is to refer the matter to the state attorney general.
The third and most expensive option is to hire a private litigation firm.
“We note that the AOC, which rarely if ever sends lawyers to court, prefers to contract for outside counsel,” wrote Kern County Judge David Lampe.
(In the interest of full disclosure, it should also be noted that Courthouse News filed a complaint last year against the Ventura County clerk over delayed access to public documents in that court. In the ongoing litigation, the clerk is being represented by the Los Angeles firm of Jones Day.)
In one their many recommendations for reform, the judges’ report last week recommended that either the Judicial Council or the administrative office director “should order an independent review of this office’s use, selection, and management of outside legal counsel.”
More bluntly, Judge Steve White in Sacramento said that rather than hiring more lawyers, the administrative office should be laying most of them off.
“The 100-plus lawyers should be cut by at least two-thirds,” said White. “Not next year. Now.”
On the separate issue of the role played by the general counsel, the judges found in their report that the general counsel’s office had overstepped its bounds.
“Managers within the AOC express concerns that the General Counsel regards herself as a ‘gatekeeper’ for matters that are put before the Judicial Council and that the General Counsel has inserted herself into the policy making functions of the Judicial Council, as opposed to the more appropriate role of providing legal services and advice,” they said in their report.
The Judicial Council, made up of judges and led by the chief justice, is the top policy making body for California’s judiciary.
Not only had the general counsel overstepped her bounds, said the report, but her office was also playing politics.
“Multiple courts express concern that advice given by Office of the General Counsel is political or result-oriented in the sense that it may be colored by placing the AOC’s interests ahead of the specific interests of the trial court,” said the report.
“For this reason, and because of other issues discussed in this section, many courts simply lack trust or confidence in OGC.”
The judges also noted that the administrative office’s tendency to aggrandize job titles extended to the general counsel’s office.
“From a historical perspective, an office that was once shown in AOC organization charts as the Office of Legal Services has been elevated in status, becoming the Office of General Counsel,” said the report. “All of these developments point to the need for redefining the proper role of the AOC’s top legal adviser.”
Among the recommendations from the judges, they said the general counsel’s job should be defined so it is clear that her main job is to provide legal advice and services, and not to develop policy.
“Most fundamentally,” said the report, “this division should employ and emphasize a customer service model of operation.”
A Big Staff Slowly Writing Opinions
The traditional function of an agency’s legal counsel is to write legal opinions on issues facing the bureaucrats. But the judges on the committee found that the general counsel’s office was doing an inadequate job of handling that traditional function.
“A significant number of courts report unnecessary delay in obtaining legal opinions or advice from OGC,” said the report. “For example, multiple courts report that requests were made for legal opinions, for which opinions were not issued for many months, or for a year or more.”
Back in 2006, the report notes, these legal delays were investigated by independent consulting firm KPMG, which recommended that the Office of the General Counsel should better monitor its performance on issuing legal opinions and give courts better access to prior legal opinions.
“Since neither of these recommendations appear to have been implemented to any perceptible degree,” said the report, “it is appropriate to question the effectiveness of the management of OGC and its level of commitment to providing timely service to the courts.”
Some courts complained that the AOC’s liberal telecommuting policy also precluded judges from meeting with attorneys and obtaining legal advice.
The committee found that one attorney telecommuted from Switzerland, and two others from Maryland and Minnesota. Those kind of work arrangements violate administrative office policy, said the report, but they were OK’d by Roberts and the former AOC director William Vickrey.
The report’s authors told the story of a trial court that asked for a meeting with a general counsel office lawyer over advice he had given, only to be told a meeting was not possible because he worked at home in another state.
“These types of permitted, telecommute arrangements demonstrate not only a deficient service orientation to the courts but also a seeming arrogance or lack of sensitivity in the eyes of many budget-strapped courts that cannot afford the luxury of such arrangements,” wrote the judges in their report.
Personnel policies, they added, “are not enforced – or are simply ignored,” the judges found. “There currently are at least two positions in the Legal Services Office that violate the AOC’s telecommuting policy. These should be terminated immediately, resulting in reductions. Nor should telecommuting be permitted for supervising attorneys in this division.”
A list of telecommuting workers obtained by the reform group Alliance of California Judges revealed the AOC allows at least 98 workers to work from home.
In addition to the three that live and work in Switzerland, Maryland and Minnesota, there are three more stay-at-home lawyers, according to that list, earning salaries that range from $120,000 a year to $156,000 a year.
Judge Runston Maino of San Diego made the point that attorneys working for the highest courts in the state are not allowed to work from home.
“Having an attorney telecommuting from Geneva for two years or living in Minnesota is not justified,” said Maino. “To my knowledge, no attorney assigned to the Supreme Court or to any Court of Appeal has been allowed an extended period of telecommuting from out of state. If it is not done by these courts it should not be done by the AOC.”
He added that the Judicial Council should have put its foot down long ago. “I cannot understand how the Judicial Council lets the AOC get away with what the AOC has done and is still doing.”
For months, Maino had been asking the AOC for information on its stay-at-home workers, and as the report’s authors also noted, the AOC was less than forthcoming in its answers.
“The AOC has not been forthcoming about who telecommutes and the list that they just published does not seem to be complete,” Maino said. He pointed out that the attorneys in Switzerland and Minnesota were not even on the list.
“The SEC had difficulty in obtaining timely and correct information from the AOC and I have had the same experience,” said Maino. “In my opinion, the AOC is more interested in protecting the AOC than in protecting the public.”