Holding errant attorneys accountable

by Jeffrey A. Tidus

When an attorney violates the profession’s rules of practice and ethics, we all pay a price: All California lawyers help finance the attorney discipline system. The public suffers a blow to its trust in the legal profession. And the client too often winds up hurt.

Is it too much to ask, then, that the errant attorney foot the bill for his or her own discipline costs? Of course not.

Critics of this idea imply that State Bar prosecutors may have ulterior motives in seeking to recoup more discipline costs from the disciplined attorneys. They imply a risk that prosecutors will try to build a cash cow. Nothing could be further from the truth.

Proposed changes would expand the bar’s ability to recover disciplinary costs, but would not include any financial incentive to the prosecutors. Recouped costs go to the bar’s general fund, not to the discipline system’s coffers. The bar’s goal here is simply to shift more of the financial burden away from the State Bar membership as a whole and onto the errant attorneys themselves — and to be fair about it.

Publicly disciplined attorneys currently are required to pay clerical costs, investigative costs and out-of-pocket expenses. To assess such charges, the bar follows a formula rather than determining the actual cost in each case. That formula takes into account the number of investigatory matters in the case, the concluding stage of the case and the average out-of-pocket expenses.

Just consider the potential impact on the system if the bar’s staff had to tabulate and assess the specific costs in every single case. Creating a special bill in each instance would drive up costs and open the door to endless litigation about whether or not a particular investigation took too long, incurred too much expense or was reflected accurately in time records.

In contrast, an equitable cost-recovery formula encourages early settlement. Before agreeing to a settlement, an accused attorney can easily calculate his or her debt to the bar. Clearly, such an approach is fairest to both the respondent and the rest of the State Bar membership whose dues support the discipline system.

The bar has long recognized that disciplined attorneys do not always have the means to pay assessed costs immediately. State Bar judges can — and often do — extend the payment period in such cases. In fact, they may grant extensions for up to five years.

Fairness also lies at the heart of recent proposals to update and expand the bar’s cost-recovery program. Currently, the bar recoups only a fraction of its discipline costs from disciplined attorneys. Throughout 1996, a special task force conducted an extensive review of the bar’s cost-recovery procedures before recommending changes.

The final report included an exhaustive statistical study undertaken by a distinguished firm of financial analysts. The proposals, yet to be considered by the bar’s board of governors, represent an extensive effort to be fair to all sides.

But the bottom line lies in the answer to one simple question: Who should be held most responsible for the ultimate costs of an attorney’s misconduct — the errant attorney or the entire State Bar membership?

Jeffrey A. Tidus represents Los Angeles on the State Bar Board of Governors. He co-chairs the board’s committee on regulation and discipline.