The California Legislature passed a law requiring the California State Auditor’s Office to conduct an audit of the State Bar’s attorney complaint and discipline process. The Legislature included this requirement in the law because the State Bar did not take action against Los Angeles lawyer Tomas Girardi, husband of “Real Housewives of Beverly Hills” star Erika Jayne, for misconduct until recently, despite repeated allegations of this attorney’s misconduct over decades.
A Los Angeles Times investigation documented how the now-disgraced attorney Tom Girardi cultivated close relationships with the agency and kept an unblemished law license despite over 100 lawsuits against him or his firm – with many alleging misappropriation of client money. Along with his family and employees, Girardi contributed more than $7.3 million to political candidates.
The Auditor of the State of California 2021 audit report is entitled “The State Bar of California: It Is Not Effectively Managing Its System for Investigating and Disciplining Attorneys Who Abuse the Public Trust” and was released on April 29, 2021.
The Auditor noted that “the State Bar’s backlog grew by 87 percent from the end of December 2015, to the end of June 2020.” As pointed out by the Auditor, this “growing backlog allows attorneys who are under investigation more time to continue practicing law while their cases are pending, increasing the risk for potential harm to the public.” The Auditor’s “analysis indicates that both higher- and lower-priority cases are taking significantly longer to resolve.” Additionally, as the Auditor highlights, the “State Bar is also disciplining attorneys at a drastically lower rate for reasons it cannot adequately explain. From 2015 through 2019, the total number of cases that resulted in discipline – including reprovals, suspensions, and disbarments – declined by 54 percent.”
The public outcry over Girardi’s long history of complaints prompted the State Bar to conduct its own special disciplinary audit, which it published in June 2021. The audit, commissioned by Interim Chief Trial Counsel Melanie Lawrence, revealed mistakes made in some investigations over the many decades of Mr. Girardi’s career going back some 40 years and spanning the tenure of many Chief Trial Counsels.
The State Bar subsequently prepared a proposal to streamline it’s disciplinary process. On October 28, 2022, the State Bar provided the Legislative Analyst’s Office (LAO) with its proposed (1) caseload processing standards for resolving attorney discipline cases within its Office of Chief Trial Counsel (OCTC), (2) establishment of a backlog goal and metrics to measure such a goal, and (3) staffing requirements needed to achieve the new standards.
As required by Chapter 723 of 2021 (SB 211, Umberg), The LAO presented its assessment of the State Bar’s proposal. which raised concerns with some of the assumption the state bar made in developing the new standards.
– – Overarching Comments – Consider Whether Changes for Additional Oversight Are Warranted. The State Bar’s proposal assumes that the existing disciplinary process is generally reasonable. However, the Legislature will want to consider whether it believes changes are warranted. Additionally, we note that the lack of legislative approval of the State Bar budget can make oversight difficult. Accordingly, the Legislature will want to consider what level of oversight it wants to exercise over State Bar processes and funding.
– – New Case Processing Standards – Partially Reasonable, but Raises Several Concerns. We found it reasonable to include both risk and complexity when prioritizing cases. However, we identified several concerns related to the proposed standards. For example, we find it unclear whether the aggressive time lines reflected in the standards are reasonable. In light of these concerns, we raised five key questions for legislative consideration. For example, the Legislature will want to consider how aggressive they believe case processing standards should be.
– – Establishment of Backlog Goal and Metrics – Partially Reasonable, but Also Raises Several Concerns. We found that alternative definitions of backlog could also be reasonable and identified several concerns with the State Bar’s proposal. For example, the State Bar’s proposed backlog metrics measure closed, rather than pending, workload. Based on our review, we identified three key questions for legislative consideration. For example, the Legislature will want to consider how backlog should be defined and calculated.
– – Staffing Analysis – Makes Sense to Delay Analysis. We found that it was reasonable that the State Bar report only provides a preliminary estimate of staffing and resource needs. However, we are concerned with the State Bar’s plan to conduct a staffing analysis in 2023 given that the full impact of various operational changes will likely not be known at that time. Based on our review, we identified two key questions for legislative consideration. For example, the Legislature will want to consider when would be the most appropriate time for the State Bar to conduct the staffing analysis.
The bar’s chief mission officer Yun Xiang said in reply that .”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,” He indicated that the state bar will continue to collaborate with the LAO and the Legislature to provide further clarifications and address the proposal-specific issues.”