California Bar Journal
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Discipline funding
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effectively shut down last June, about 3,000 new consumer complaints are warehoused and have not been screened. Another 4,400 unresolved investigations were suspended with investigation or action pending.

The special assessment ordered by the Supreme Court in December will provide about 65 percent of the discipline system's usual budget.

As a first step, Lui authorized the release of funds in mid-January to reopen the toll-free consumer complaint telephone lines and the ethics hotline for lawyers.

The complaint lines were set to re-open March 1 and the ethics hotline was to be reactivated in the middle of the month.

The complaint line, although open 24 hours a day, will be staffed by live operators only four hours a day. Complaint analysts will spend the rest of their time on remaining pending inventories in an effort to expedite resolution of the large backlog of cases.

Chief trial counsel Judy Johnson has revamped her office into teams of investigators and attorneys, most based in Los Angeles, who will prosecute cases based on a new four-tier system of priorities.

The new system, which Lui said "recognizes the realities of life," creates the following classifications:

Highest priority cases are those which present the greatest risk of harm to clients, are high-profile, or are likely to result in a minimum of one year of suspension for the attorney. They include misconduct such as misappropriation of client funds, other financial improprieties, and multiple rule violations.

Second priority will go to cases such as criminal convictions and other matters likely to result in discipline ranging from reprovals to a year of actual suspension. Failure to perform legal services, misrepresentations to the court and unconscionable fees fall in this category.

Matters in which violations are alleged but there is no apparent substantial harm to clients are the third priority. These include isolated instances of misconduct and the unauthorized practice of law by disbarred or suspended attorneys or non-lawyers, which will be referred to law enforcement.

Lowest priority will be given to matters which are not likely to lead to formal discipline. Such matters may be dismissed, or the offending attorney might be sent a warning letter or be referred to an educational program.

In order to encourage early resolution of some cases, prosecutors will give targeted attorneys early access to evidence. In addition, Johnson is studying the possibility of initiating alternative dispute resolution techniques such as mediation to resolve cases without litigation.

At the State Bar Court, rules changes include greater ease of consolidating multiple matters, shortening the discovery period and waiving oral argument. Hearing judges and the review department now must file decisions within 90 days.

A change which drew support from both prosecutors and defense attorneys will permit attorneys who have not yet been charged to request an early neutral evaluation of a case by a bar court judge.

Currently, prosecutors notify an attorney of their intent to file charges and offer an opportunity to meet and resolve the matter.

The new rule allows an evaluation conference at which the parties may share information with the judge, who will provide an oral evaluation of the case. If the parties can reach agreement, the judge may promptly approve it, avoiding drawn-out discovery and trial.

"There has been a perception that the office of the chief trial counsel exerts too much pressure on respondents," said Scott Drexel, chief attorney for the State Bar Court. "An early neutral evaluation allows both sides to get a reality check before charges are filed."

Jerome Fishkin, who represents lawyers facing discipline charges, supports the changes and called them positive. "They will make the system work a lot more efficiently," he said. "I am especially glad we have the possibility of a settlement conference before charges are filed. Many cases in which the attorney is represented by counsel can settle at that stage if we just have the opportunity for a short settlement conference with the judge."

The board postponed acting on a proposal to streamline default proceedings, which occur in 35 percent of cases which go to trial.

A recommendation to eliminate the need for probation revocation hearings was deferred because defense attorneys objected to several particulars.

Although the streamlining efforts are expected to move cases more expeditiously than in the past, Johnson warned that expectations should not be unrealistically high. Her office will hire and recall 215 employees, divided among investigators, attorneys, complaint analysts and support staff. The numbers represent a one-quarter reduction from the size of the office when the layoffs occurred June 26.

The number of suspended investigations, many pending for more than a year, far exceeds the usual number of matters pending for only six months, a figure that has not exceeded 400 for more than a decade.

Further, Johnson said she expects an onslaught of demands from the public which has had no recourse for nine months.

"We have to revise the expectations of what our system can do," Johnson said. "It's very difficult to do 100 percent of the work with only 65 percent of the resources."