Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
From the President

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.

Jon StreeterSince 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.

 Reduction of Complaint Backlog

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:

 Discipline Levels By Percentage

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.