| Court had a staff of 52. Together, they consumed 70 percent of the bar's
budget--more than $41 million annually. Now, 20 remain in the prosecutor's office and
seven at the bar court, along with eight judges on reduced salaries.
"For bad lawyers," says chief trial counsel Judy Johnson, "it's like
allowing cowboys to come to town on a Saturday night, get likkered up, and there's no
sheriff. We can't react."
In addition to consumers without recourse, judges who used to refer errant lawyers for
discipline are now encouraged by the bar to use their contempt and sanction powers
instead. Criminal matters can be referred to local district attorneys.
Other problems
There are other problems as well, some mere inconveniences, but others more serious:
 About 1,000 attorneys who are on probation are
unsupervised.
Disciplined lawyers who complete probation have to
make greater efforts to be reinstated than in previous years.
Unpublished cases, formerly used as a valuable
research tool, are no longer available, depriving both prosecutors and defense attorneys
of a body of law.
Twenty California counties do not have a fee
arbitration program. The bar used to operate the biggest program in the state.
Papers can be filed with the State Bar Court only
during two hours each day.
Disbarred attorneys who are eligible for
reinstatement basically have no recourse.
Copies of decisions and case summaries are no
longer available to reporters, and therefore to the public.
Requests from law enforcement (federal
prosecutors, the IRS, district attorneys) for an attorney's discipline record are, for the
most part, not being filled.
There is a sizeable backlog of discipline matters
decided by the bar court but not forwarded to the Supreme Court for action. Under normal
circumstances, such matters were sent to the court in 30 to 40 days; it now takes as long
as 75 days.
When deciding which cases to abate at the time of the shutdown, the bar court
considered whether the lawyer in question was already on a "not entitled"
status. If he or she was for some reason prohibited from practicing, the case was put on
hold, even if the charges are serious.
In order to go to trial, the case had to have a trial date already set before the end
of 1998 and the charges had to warrant a minimum of one year of actual suspension.
The most worrisome matters to discipline officials are cases like that of Carole Ann
Gearhart, a Riverside bankruptcy lawyer against whom the bar had filed 15 cases,
incorporating 50 counts of misconduct.
One client lost her home because of Gearhart's actions, the bar alleges, and another
was threatened with foreclosure.
Still practicing
Prosecutor Jan Oehrle says a disbarment request was under consideration, but because no
trial date was set during 1998, Gearhart's case was abated and she remains eligible to
practice law in California.
Under the Business & Professions Code, the State Bar can petition the court to
assume the practice of an attorney who is incapable of practicing competently.
Because the bar can no longer afford to do so, it asked the Riverside County Bar to
take over Gearhart's 500 to 700 cases.
But according to Riverside bar president Diane Roth, the local bar is not equipped to
handle such a massive undertaking, which includes taking physical custody of client files,
computers, and other property, contacting every client and making sure each is protected.
"It's our intention to do whatever we can to protect the public and (Gearhart's)
clients," Roth says.
"The State Bar really had the machinery set up to go in and take custody of a
practice. If we don't have an agency that can come in on a case like this, that's very
frightening."
Those who do try to help face a daunting challenge.
"It's like quicksand," says JoAnne Robbins, who represents Gearhart.
"You aren't quite sure where to step and where to stop. It's a very fuzzy, very
nebulous area."
The district attorney also is investigating Gearhart and Riverside bankruptcy Judge
David Naugle has banned her from appearing before him and issued a proposed order that she
be prohibited from practicing in any federal court in the central district.
Charles Kavalaris of San Jose also worries discipline officials. Facing possible
disbarment, he was charged by the bar with illegal fee-splitting, paying non-lawyers more
than $280,000 over six years for case referrals. Trial was set, but his case was abated
because he was suspended as a result of an earlier discipline.
That didn't stop Kavalaris from making four appearances in four separate matters last
April and May, about the time the bar's complaint hotline shut down.
Kavalaris was ordered to take the personal responsibility exam as a condition of an
earlier probation, and he faces a 60-day suspension for violating probation. He has taken
the PRE; when he passes he is eligible for practice once he serves the 60-day suspension.
"We know from the track record that not all lawyers can be trusted to honor their
professional obligations," says Judy Johnson.
The discipline shutdown "basically allows lawyers to exist in a kind of state of
nature in which there's no one to regulate them."
Come on down
Annoyed that lawyers gripe about the expense of the discipline system, Johnson suggests
that volunteer efforts would help keep the cost down. She has a long list of volunteer
opportunities, including investigation and prosecution, fee arbitration, probation
monitors, and assisting with the assumption of practice.
 "If lawyers are having an Excedrin headache with the State Bar and would
prefer to do it themselves, let them," she says.
To that end, the bar board of governors voted in principle last month to allow Johnson
to use volunteer attorneys as special prosecutors.
But Johnson cautions that the old, volunteer system was inefficient, the equivalent of
a neighborhood watch as opposed to a paid police officer. Its failures resulted in the
creation of a professional operation, including a State Bar Court that relieved the
Supreme Court of 40 percent of its workload.
"Yes, it was expensive, but it worked fine," she says. "It was an
efficient system and now it's a shambles." |
