Taking discipline to heart

by Marc Adelman

Last year's plebiscite campaign once again put the spotlight on California's attorney discipline system, with members voicing concerns about its cost, efficiency, effectiveness and penalties.

Most attorneys felt the system was still too slow, consumed too much of their bar dues, picked on the little guy and did not serve to adequately protect the public or the victim.

The comments were a far cry from the "secretive, slow and lenient" label given to the system by the media in 1985; they did, however, bring to light issues involving the budget, the backlog and permanent disbarment.

The bar clearly has taken such concerns to heart.

With a recent rule change, California's few unscrupulous attorneys whose misconduct is especially egregious now run the risk of the ultimate career penalty: they stand to permanently lose their right to practice law in California.

Under the new rule, the State Bar Court has the discretion to disbar lawyers for either five years, 10 years or permanently, depending on the seriousness of the misconduct, the prior record of discipline and the likelihood of rehabilitation.

While the worst offenders now face stiffer penalties with less delay, minor rule-breakers are receiving more support in getting back on track.

For example, "warning" and "directional" letters now alert attorneys to problems in their practice. Fee disputes are funneled to arbitration programs run by local bar associations. In some cases, a single phone call has succeeded in diffusing an attorney-client issue.

Today's system regulates a profession which has quadrupled in size to nearly 155,000 California attorneys in less than 25 years. The system fields some 138,000 calls a year to its consumer hotline, handles some 16,000 inquiries, investigates approximately 6,000 complaints and files disciplinary charges or stipulations in roughly 700 cases.

Even with the increased volume of complaints, the system has managed to process more complaints in a shorter period of time. By centralizing operations and reducing staff, the bar also has succeeded in cutting the system's costs by $1.2 million. Simultaneously, the bar is focusing more resources on the most egregious cases and using new tactics to minimize the threat to consumers.

Special "strike teams" are one example. Last year, a strike team on illegal lawyer referral services used new statutes to seek injunctions and monetary penalties against two businesses; as a result, both businesses chose to close up shop.

Another strike team joined the state attorney general in suing an alleged "trust mill" accused of using scare tactics and unlawful business practices to sell living trusts and annuities to senior citizens. Still another team visited disaster sites to educate victims about their rights.

Despite evidence to the contrary, the perception still exists that the system unfairly targets sole and small-firm practitioners. This monitoring system may help to finally dissipate this perception, as well as protect the system's future integrity.

Clearly the process of maintaining, updating and fine-tuning such a multi-dimensional discipline system never ends. But the recent changes can only increase the efficiency of the operation and offer a greater measure of protection, not just for the consumer but for our entire system of justice.

Bar board member Marc D. Adelman is chair of the committee on regulation and discipline.