|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.
In 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
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.
In 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
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.