You Know I Knew Something Must Be Rotten In California

"Weak Policies Limit [the] Ability to Protect the Public From Attorney Misconduct"

That quoted subtitle is the actual subtitle of the April 14, 2022, State Bar of California's Attorney Discipline Process (the "ADP") audit report by Michael S. Tilden, CPA, Acting California State Auditor (link to the report and CA Bar response in comments). The audit report is 69 pages, filled with case examples, statistics and impressive graphics. Unfortunately, the audit ultimately concludes the CA Bar failed to hold lawyers accountable due to flaws in the ADP, specifically finding that the system "failed to effectively prevent attorneys from repeatedly violating professional standards."

The audit found that the CA?Bar prematurely closed cases that may have warranted further investigation and potential discipline and lacks clear policies on the use of nonpublic measures for closing complaints. Many investigations were closed by nonpublic measures, most prominently via private warning letters.

Some attorneys with lengthy patterns of complaints (including a lawyer with a staggering 165 complaints over the course of 7 years without any public discipline!) were not adequately investigated.

The ADP closed multiple complaints alleging that an attorney failed to pay clients their settlement funds because the clients withdrew their complaints, which presumably allowed the attorney to continue misappropriating client funds, and consistently failed to identify or address conflicts of interest that may exist between CA Bar staff members and the attorneys they investigate. The audit shows the weakness in nonpublic discipline, over a quarter of those attorneys that received a nonpublic warning letter in 2019 have since been the subject of a new complaint.

In over one-third of the cases reviewed by the audit, the CA?Bar did not document its consideration of conflicts before it closed complaint cases. The audit report provides a series of recommendations and notes that the CA?Bar generally agreed with the audit's findings and recommendations, with one exception regarding client trust account reporting. Although, the CA Bar understandably notes that significant additional resources would be needed to implement the?audit recommendations.

Putting aside the obvious 20/20 hindsight and other objections to the audit, the big takeaway here is that the CA Bar, and likely every state's, is admittedly not living up to the lofty Preamble of the ABA Model Rules. The Preamble, which is conspicuously absent from CA's Rules, reads: "The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves." Undeniably, the sole purpose of the independence of the legal profession is for the public good - if we fail in our obligations of self-governance, we need to recognize and accept this failure while moving on to something that works.

I've heard some zany ideas about an alternative to self-regulation, including "civilian" oversight committees, government regulators, juries for attorney discipline, etc. - but is now the time to begin allowing legal remedies (and the dollar damages they entail) for breaches of professional responsibility akin to legal malpractice claims? We've already got the rules, we've already got the disciplinary process, what could an alternative system do better than a cause of action for a breach of the rules?

Let me know your thoughts and if you picked up the reference to a reference in the title! I couldn't come up with a decent portmanteau of California and the other place though.