It's not time to start all over again

by Maury Evans

Mandatory State Bar dues paid by California attorneys, and the portion of those dues consumed by the bar's discipline efforts, lie at the heart of the campaign to abolish the unified bar.

Unfortunately, the disciplinary function, which accounts for more than 70 percent of the bar's budget, is not well understood by the attorneys who provide most of that funding.

In the 1970s and 1980s, the number of attorneys in California nearly tripled, and a corresponding increase in complaints against attorneys pushed the underfunded, largely volunteer-run system to a near standstill. A backlog of 4,000 unanswered complaints sparked an outcry from the public, legislators and lawyers which, in turn, triggered the first round of reform.

With the approval by the legislature of an increase in attorney fees, the discipline system was overhauled in 1989. The system's staff was expanded; the nation's first fulltime, independent disciplinary court was created, and the complaint backlog was conquered. A system was created to assure public protection and adequate due process for attorneys charged with professional misconduct.

The bar's discipline system has undergone extensive, continuous scrutiny over the years, and when the need for change has been identified, the bar has responded.

The successful management of the backlog helped free staff to focus on other key goals this past year. The bar's staff and board members began looking for new ways to cut costs and streamline the discipline system without sacrificing public protection and the due process afforded to accused attorneys.

Newly created "strike teams" are targeting attorneys involved in particularly harmful practices, such as insurance fraud, workers' compensation fraud, and illegal lawyer referral services, while diversion and prevention programs have been bolstered to help prevent attorneys from getting into trouble in the first place.

This shift in focus followed a 1994 report from the specially appointed Discipline Evaluation Committee (DEC). The committee commended the discipline system's fairness and victory over its backlog but recommended paring down operations and improving the focus of available resources. During the last year, more than 50 DEC recommendations have been acted upon, and even more extensive changes have been proposed in some instances.

The plebiscite question states that the bar's discipline functions would be "turned over to another body or bodies." However, public protection and the prevention of attorney misconduct require more than the complaint process alone. The bar's staff currently handles more than 112,000 calls each year to its consumer hotline - fielding questions and complaints on a wide array of law-related issues. Complaint analysts annually conduct 17,000 new inquiries into allegations against attorneys.

A widely varied, integrated network of bar services has evolved, including an Ethics Hotline for attorneys, Ethics School, the Law Office Management Assistance Program (LOMA) and the Client Security Fund which, since its inception in 1972, has paid more than $26 million to consumers victimized by dishonest attorneys.

California's legal profession, through its unified bar, has spent years developing a nationally recognized system, but it is an evolving process that requires constant scrutiny.

Changing a system as large and multifaceted as the bar's discipline system would necessitate financing a whole new startup operation and would be impractical. The bottom line is that lawyers - not taxpayers - are going to foot the bill for their own discipline system irrespective of who does the job.

In the final analysis, the dues charged to California attorneys (up to $478 per member) must be considered in context. The fees paid by California's lawyers are not out of line based on a survey of 13 other professions regulated by the Department of Consumer Affairs. Compared to what those other professionals pay to both state agencies and voluntary state associations, attorneys in California rank eighth out of 14. Some of these professionals, including doctors, pay more than $1,000 a year in equivalent fees.

The bar has trimmed $4 million off its total budget since 1993, has launched wide-scale efforts to cut all costs, and is actively seeking more savings. Discipline costs have been cut by more than $1 million so far; a better system has been created to strengthen public protection and maintain professional standards in order to bolster public confidence in lawyers; and more plans for further reforms are in the works.

In these challenging times, it would be ill-advised to ignore hard-earned lessons, take a step backwards and simply start all over again.

Maury Evans, chief assistant district attorney in Orange County, is chair of the Board of Governors discipline committee.