The Year of Zero
By Jon B. Streeter
President, State Bar of California
The
subject of attorney discipline is never a happy one, but because we have some
groundbreaking news this month I’d like to share that news with you.
Since
the vast majority of our members never have occasion to deal with
California’s attorney discipline system, I’ll start with some
context. Structurally, I believe we have the strongest and best
system of attorney discipline in the United States. The backbone of the
discipline system is the State Bar Court, which is independent from the Bar and
is composed of full-time judges. Our precise role in discipline, handled
by the Bar’s Office of Chief Trial Counsel (OCTC), is limited to investigating
and prosecuting disciplinary complaints. The California Supreme Court has
plenary authority over both the State Bar Court and OCTC, with OCTC’s case
closure decisions reviewable by writ, and the State Bar Court’s discipline
decisions reviewable by petition for review. From a 64,000 foot level,
the most important thing to appreciate about the Bar’s role in this
system is that we do not impose or adjudicate discipline. Lawyers do not
sit in judgment on other lawyers. Our role is roughly analogous to that
of a criminal prosecutor, with the important caveat that while a criminal
prosecutor has virtually unfettered prosecutorial discretion, we act as an
adjunct of the Supreme Court, which is why OCTC’s case closure decisions
are reviewable by writ.
The
professional discipline of attorneys is not about punishment. We seek to
deter misconduct, and, where necessary, to “take bad lawyers off the
street” through disbarment or suspension. As the Supreme Court has
said, ”’[t]he primary purposes of disciplinary proceedings
conducted by the State Bar of California and of sanctions imposed…are the
protection of the public, the courts and the legal profession; the maintenance
of high professional standards by attorneys and the preservation of public
confidence in the legal profession.’” In re Silverton,
36 Cal. 4th 81, 91 (2005) (quoting In re Morse, 11 Cal. 4th 184, 210 (1995). In a system that generates over 20,000 complaints per
year against attorneys -- each of which must be evaluated and disposed of
thoughtfully -- meeting these goals in a prompt and efficient way has always
been a challenge. By statute, OCTC is charged with investigating and
making a charging decision on each complaint within six months. For
years, OCTC has carried an enormous backlog – cases in which the six-month
deadline has not been met -- averaging some 1,600–1,900 uncompleted
investigations and some 600–700 cases in which investigations have been
completed but in which charges await filing with the State Bar Court. Because
the Bar’s mission centers on public protection, the corrosive effect of carrying
a chronic discipline backlog is hard to overstate. Any backlog -- much
less one of this magnitude -- undermines our credibility with the public and
the confidence reposed in us by the Supreme Court. Because every
dedicated professional deserves to have the cloud of a baseless accusation
removed as rapidly as possible, it also damages the interests of accused
lawyers facing meritless complaints. Only offending lawyers deserving of
discipline benefit from delay.
Now
for the momentous news. In July 2011, the month I was elected State Bar President,
we made an ambitious pledge: To eliminate OCTC’s disciplinary
backlog by December 31, 2011. I am pleased to report that we met that
goal. I credit Joe Dunn, our Executive Director, for having the vision
and managerial acumen to insist that we not only reduce OCTC’s backlog,
but completely eliminate it, an idea that at the time we announced it seemed
incredibly bold, in light of the fact that the Bar has carried a large
discipline backlog for decades. The entire Board of Trustees immediately
embraced this goal, and central to my platform in running for President was to
see to it that we met it. One of our biggest challenges was that the job
of Chief Trial Counsel was vacant in July 2011, but within weeks we found a
dynamic new leader, Jayne Kim, who accepted the job of Interim Chief Trial
Counsel, overseeing OCTC. We also found Jim Fox, who agreed to join OCTC
as Senior Advisor to Jayne. Jim served as the elected District Attorney
of San Mateo County for 30 years and brought a deep well of experience managing
a prosecutorial office. Jayne and Jim set to work immediately, making a
number of key changes to the work flow within the OCTC, appointing a backlog
“swat team” of the most skilled, highly productive members of the office,
and laying the foundation for a “vertical prosecution” approach to
cases in which one lawyer is assigned to each complaint from filing to ultimate
resolution, thereby enhancing each lawyer’s sense of responsibility for
moving cases and meeting office-wide productivity goals.
In
the corporate world, this might be called process re-engineering.
Whatever it is called in our setting at the Bar, it brought immediate and
dramatic results. Although my work as President through the fall was
taken up on mostly public-facing matters -- such as the judicial branch
budget crisis -- quietly, behind the scenes, I was checking regularly on
progress with Jayne and key board member Lowell Carruth, the Chairman of the
board committee to which OCTC reports. In these discussions, we focused
heavily on objective measurements of success -– productivity
metrics. Below are two charts that show the results we began to see,
starting in July.
As
the pending investigations chart shows, we literally “zeroed out”
our inventory of investigations as of December 31, 2011. The situation
with cases ready-to-be-charged is slightly more nuanced, because the picture there
is ever-changing; cases roll into that category literally on a daily basis as
investigations are completed. In order to deal with the reality that the ready-to-be-charged
target is constantly moving, our monitoring chart assumes a benchmark date of
July 2011 for measuring the “old” inventory we sought to work down
(we chose July because that is when we announced our goal). As a result,
the cases-ready to-be-charged chart slightly overstates where we were as of
December 31, 2011, but it is not far off the mark. Our actual ready-to-be-charged
inventory of cases older than six months as of year’s end stood at only
187 cases, the lowest point on record.
Some
skeptics have asked whether OCTC reduced its backlog so dramatically this by
undertaking superficial investigations and “going easy” on errant
lawyers. The answer is “absolutely not.” Jayne and her
team installed a number of quality control measures to guard against that,
including an auditing procedure on investigations. In addition, the
number of writ petitions filed with the California Supreme Court following OCTC’s
closure of cases without charges -- which is one barometer of the level of
concern that complainants’ have about the thoroughness or our
investigations and the correctness of any decision not to seek discipline -- went
down sharply from 435 in 2010 to 193 in 2011, and not a single one has been
granted from July 1, 2011 to date while we have been working so aggressively on
backlog reduction. There was, to be sure, a sharp increase in the number
of cases resolved by stipulation during this period, but all stipulated resolutions
must be approved by the State Bar Court. And one need only look at the
statistics comparing the severity of discipline over the past three years to
see that, if anything, the cases OCTC resolved in 2011 resulted in slightly
harsher discipline than in the immediate past two years, as this chart shows:
Anyone
familiar with the history of OCTC knows that it has periodically reduced its
backlog at year’s end, only to see the backlog return shortly
thereafter. But never before has the backlog been sliced as deeply as we
did in 2011, and the changes we made this year are designed to ensure that the
backlog does not resurface. Our goal was to eliminate the backlog and to
eliminate it permanently. No doubt there will be occasional spikes
in the volume of work that OCTC handles -- no one can predict, for example,
when we will see another phenomenon like the home foreclosure crisis, which has
generated an avalanche of complaints against attorneys in recent years -- but I
am now confident that with our new focus on performance metrics and the “process
re-engineering” that Jayne Kim has implemented, the backlog that has
plagued us for years is gone for good. I am even more confident that the
word “Interim” will be dropped from Jayne’s title.