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Proposed overhaul of disciplinary process for California attorneys raises new concerns

A report by California's Legislative Analyst found proposed standards reasonable in many respects but expressed concern about some aggressive targets to shrink investigation backlog.

LOS ANGELES (CN) — The State Bar of California's proposal to streamline its disciplinary process in the wake of the Thomas Girardi scandal has raised concerns that its aggressive goals may come at the expense of the quality of its investigations.

In a report Friday, the independent Legislative Analyst's Office, which advises California lawmakers, found the state bar's proposals to more efficiently handle the many thousands of complaints about its members it receives each year were on the whole "reasonable" but it also raised several concerns for the Legislature to take into account.

The California bar, by far the largest in the U.S. with more than 286,000 members, was ordered by state lawmakers to develop new processing standards to resolve attorney discipline cases in a timely and efficient manner and to reduce its backlog of pending investigations.

The Legislature passed a bill in 2021 for the state bar to clean up its act following an outcry over its failure to act for years on complaints about Girardi, who had used his clients' trust accounts from settlements as his own piggy bank. Complaints about Girardi, a nationally renowned trial lawyer, began in the 1990s, but Girardi continued to work for over 25 years thanks in part to the lavish relationship he maintained with the agency tasked with regulating his profession.

The proposal the state bar issued in October calls for a sharp reduction in the amount of time it takes to close a case. For cases that are closed at intake, which happens to about 63% and which involves the initial screening of the merits of a complaint, the bar wants that to be done in 30 days on average rather than the 42 days it takes now on average. For cases that proceed to investigation, the bar wants them closed in 120 to 210 days, depending on their complexity and risk to the public, rather than the 167 to 307 days it takes currently.

Finally, with the cases that reach the charging stage, which is about 4%, where the Office of Chief Trial Counsel decides whether to file formal charges, the proposal wants those closed in 300 days on average. Currently these take about 447 days to close.

The Legislative Analyst's Office evaluation of the proposal raised concerns with some of the assumption the state bar made in developing the new standards, specifically with the premise that there shouldn't be periods of 60 days or more between "processing events" when cases sit idle waiting for Office of Chief Trial Counsel staff to take action.

"The state bar acknowledges that this is an aggressive approach that assumes that such idle time periods will no longer occur — rather than assuming that idle periods will be shorter in length," according to the report.

The problem, according to the legislative analyst, is that it is unclear how this "idle time" can be avoided when investigators need to get documents from entities like banks or the federal government. It typically takes six months or more to get immigration records from the federal government, according to the report.

"As such, it is unclear the extent to which these case processing standards are reasonable," the report said. "If case processing standards are unreasonable, it is possible that the quality of case processing — such as the thoroughness of investigations or the proposed disciplinary action — will decrease in order to meet the standards."

In this regard, the legislative analyst evaluation cited a July 2015 audit by the California State Auditor that found that the state bar’s focus on reducing an excessive backlog of disciplinary cases in the years preceding the audit had resulted in a decrease in the severity of discipline imposed.

The Legislature will want to consider how aggressive case processing standards should be, the report said, because more aggressive standards will either require a greater increase in resources or more significant operational and/or procedural changes. The state bar's staff indicated in focus groups that the case processing standards were only achievable if staff caseload was generally lower than existing caseload levels.

“The state bar is pleased to learn that the Legislative Analyst's Office found the proposed disciplinary case processing standards ‘reasonable’ in many key aspects," the bar's chief mission officer Yun Xiang said in a statement. "The state bar also appreciates concerns and questions raised in the LAO report, including the assessment that the newly proposed standards might be too aggressive. The state bar will continue to collaborate with the LAO and the Legislature to provide further clarifications and address the proposal-specific issues and other issues, including budgeting process, cost analysis, and past audit responses, with the ultimate goal of enhancing the effectiveness and efficiency of the discipline system.”

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