California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MAY 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - May 1999
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News
Lending compassion to a difficult situation
Legal specialist exam set Aug. 29
Board to meet June 25-26
Domestic violence group seeking volunteers
Northern California legal services board to fill five vacancies
Court statistics report now available on CD
For Y2K advice, link through bar's web site
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Trials Digest
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Opinion
Hear the cries this time
A single letter, a big increase
Train time at the ABA
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From the President - Door to justice must be open
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Letters to the Editor
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Legal Tech - Litigation library great for attorneys out of office
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New Products & Services
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MCLE Self-Study
The Disabled Practitioner
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - What to do when a client goes missing
Attorney charged with exposing clients to deportation
Attorney Discipline
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Public Comment
New front opening in discipline system
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(continued from Page 1)
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Priorities I and II getting the most attention.

Priority I includes cases which present the greatest risk of harm to clients, are high profile, or are likely to result in at least a year of suspension. They include misconduct such as misappropriation of client funds and multiple rule violations.

Cases considered Priority II include criminal violations and matters which will lead to discipline ranging from a reproval to a year of suspension, such as failure to perform competently or charging an unconscionable fee.

Victoria MolloyPriorities III and IV are referred to another agency and closed altogether. These include some fee disputes, unauthorized law practice by disbarred or resigned attorneys or non-lawyers, court sanctions and isolated instances of misconduct.

"We can't do 100 percent of the work with 65 percent of the money and staff," said Victoria Molloy, assistant chief trial counsel in the Los Angeles enforcement office.

Molloy used to supervise about 120 investigators and attorneys; she now heads a group of 80.

"We've carved out some things we can't do anymore," she said. "Obviously it's frustrating, but it's the reality of being prosecutors."

Molloy emphasizes the positive, though, saying she's "thrilled" to be back in business. "I keep telling people we have to eat the elephant one bite at a time."

A reasonable approach

Former State Bar Court judge Ellen Peck said she believes the discipline office is "doing what prosecutors should do.

"They're being reasonable by closing cases that do not warrant further investigation or a further investment of personnel resources or money, cases that are not even questionable in terms of culpability. I think they're doing a good job."

A frequently heard word among discipline workers in both Los Angeles and San Francisco is "triage" - the art of placing complaints in one of the four priorities and deciding what to do with them. Virtually everyone, from complaint analysts to investigators and attorneys, is reading complaints or reviewing files.

While the system was shut down, hundreds of cases before the State Bar Court were abated. Attorneys are now re-examining those and filing motions to unabate some matters. Suspended investigations are being revisited. The thousands of complaints warehoused by the bar during the shutdown are under review.

Molloy says she believes it will take about a year to get the system back in sync.

Geri Von FreymannGeri Von Freymann, a bar attorney in Los Angeles for 10 years, returned after being laid off to find seven boxes of files in her office.

Now on a team which handles probation violations, mini-reinstatements and referrals from other states where an attorney has been disciplined, Von Freymann says she suspects a significant amount of attorney misconduct may have occurred during the shutdown.

But so far, she's not overwhelmed by her caseload. "When the dust settles, I think things will be pretty much the same," she said. "We'll resolve more of the lesser conduct cases and get things out of the system faster."

Nancy WatsonNancy Watson, another longtime lawyer in the Los Angeles enforcement office who is now handling high-profile matters, believes the new system of priorities will be effective. "It seems to me it's going to work a lot better with the reorganization," she said.

But those who specialized in minor misconduct, like 12-year investigator Ysabel Naetzel, feel frustrated. She used to deal with matters such as disputes between attorneys over settlement drafts and improper communication with a represented party.

Ysabel NaetzelThe issues were not particularly difficult but they were time-consuming, Naetzel said. "More than half the time we were able to resolve these," she said. "We clarified things, and it was a learning experience for the lawyer. Now, we don't have time to talk to them."

She also worries that "if lawyers know we'll brush them off, they'll continue to do it."

Attorney Karen Gorman agrees that in the past, she could spend a great deal more time on cases. Letters were customized, "almost like a mini-decision," she said. Now, they're much more standardized.

"In the past, we've been extremely customer service-oriented," Gorman said. "I hope (the new system) doesn't compromise our ability to do that."

Bar officials insist the public is being protected from scheming or incompetent attorneys.

"We do the best we can do and get prosecutable cases to enforcement as quickly as possible," said Virgo, whose staff of 65 is down to 38. "There is no less protection to the public."

He agrees that the "educational component" of the system is gone for now, and less time spent on the phone means fewer referrals and less help for both clients and lawyers.

Karen Gorman"If I had my druthers," Virgo said, "I'd have 18 people on the phones full-time, giving immediate help. But we never chase people away."

Investigators, who feel their numbers are too low, seem particularly frustrated by an inability to pursue cases. "When you reduce the kind of cases that come through the system, it's kind of like telling people to go away," said Bill Stephens, an investigator in San Francisco. "I don't know if the public is less protected, but the avenues of redress through the State Bar will be more limited in the future. I think people who come to us with a problem will be increasingly told, ‘We can't help you.' "

Said Naetzel, "I can appreciate what we did before. It worked. We did try to protect the public and we helped attorneys. We performed a service. Now you feel like you're not fully doing your job.

"I hope we can get our funding back."