California Bar Journal
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Changing for the better
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Recently approved modifications of the State Bar's discipline system will expedite the process, provide more certainty and due process to attorneys who face charges of misconduct, return to the public the effective protection it deserves and restore public confidence in the system.

James M. SeffIn other words, the changes benefit everyone.

The bar's discipline operation has been in a state of crisis since last April when, as a result of Gov. Wilson's veto of the bar's annual funding bill, it was forced to shut down the consumer complaint telephone lines. The 140,000 calls that formerly crowded those lines ceased immediately, and complaining clients were told to put it in writing.

About 3,000 people did so. However, due to the shutdown and layoffs of personnel, those complaints sit unread, awaiting action.

When the Supreme Court granted the bar's petition seeking emergency funding to reinstate the discipline operation, retired appellate Justice Elwood Lui, acting as the court-appointed special master, appointed an interim working committee to explore ways to make both the discipline system and the State Bar Court more efficient.

Members of the group included staff of the chief trial counsel and the State Bar Court, as well as counsel for attorneys charged with misconduct. Their input was extremely useful and, indeed, resulted in long-desired enhanced rights for their clients while protecting the rights of the public.

Our goal was to bring more order, speed, efficiency and certainty to the process that manages those 140,000 calls.

Because the chief trial counsel, in the exercise of her discretion and given the bar's limited resources, established clear priorities concerning the cases that deserve investigation and prosecution, complainants can be advised quickly whether their complaint will receive the bar's attention. Analysts who staff the intake telephone lines will also be able to advise consumers of alternative remedies and direct them to other resources for help.

Lawyers who find themselves facing a dreaded Notice of Disciplinary Charges (NODC) can now take some comfort in knowing that before charges actually are filed, they can see the evidence against them. They also can meet with prosecutors and discuss the possibility of settlement. The working group recommended, and the board of governors agrees, that early discovery will lead to early settlements when appropriate.

Judith A. GilbertIn a procedure unique to attorney discipline, a lawyer also can now request an early neutral evaluation by a State Bar Court judge, before charges are filed, and discuss relevant information with the judge in private. If the office of trial counsel and the lawyer reach an agreement at the conference, the judge can approve or reject it. This process also helps consumers, because they, too, can have their complaints handled swiftly.

Should the matter go to trial, other changes can speed that process, including possible shortened discovery, waiver of oral argument, and consolidation of multiple cases. Bar court judges will be required to file a decision within 90 days of submission.

After further discussion with respondents' counsel, we also anticipate changes streamlining the default process which affects the 35 percent of attorneys who fail to participate and therefore default in disciplinary proceedings.

The board of governors believes these modifications will eliminate some cases from the State Bar Court docket, facilitate reasonable settlements, resolve matters faster for both complainants and respondents, and, as a result, will be more fair to both sides.

But the adoption of these changes, however salutary, does not mean that the crisis is over. As Justice Lui said, it is not a time to relax or celebrate. As the system is revived, more changes will be made where needed - and quickly.

We caution that the system is funded only at two-thirds strength, limiting its effectiveness. While the discipline system and the State Bar Court cannot do everything they used to, by setting prosecutorial priorities which focus on cases where there is imminent harm or an egregious violation of rules, we can better protect the public and the profession.

The funding crisis forced the bar to make changes which we hope and believe will foster public confidence in the discipline system and increase the confidence of lawyers who are the subject of proceedings.

Ultimately, our discipline system will be the better for it.

Judith A. Gilbert and James M. Seff are third-year members of the State Bar board of governors and co-chairs of the board's committee on regulation and discipline.