When I saw that a CPA, Michael Tilden, completed his audit of the State Bar, I was very hopeful. Audits often focus on reducing waste and improving efficiency – doing more with the same or less. The reverse happened. Because of the nature of his suggestions - more careful processing of repeat complaints, premature closing of cases, more focus on trust funds and failure to detect conflicts of interest – the State Bar responded it would gladly comply for an additional million dollars! It seems the audit is more likely to lead to agency bloat than improved efficiency.
What went wrong? For one thing, the audit started in the weeds. It looked at how the State Bar handled cases. The audit failed to focus on the underlying State Bar policy choices.
Before turning to those policy choices, it is important to identify two assumptions used in this article: First, that the purpose of the State Bar is to protect the public, all of the public. Second, that it is desirable and important for the State Bar to achieve the most public protection per agency dollar. That means to improve the conduct of the most lawyers per dollar.
The first policy choice of the State Bar is that the most efficient enforcement of its policies is a policing model. Of course, some policing is necessary. But making policing the predominant model for the State Bar is very inefficient and results in less protection for the public.
The second policy choice is to focus on civil representation of clients in which the clients have been harmed or lawyers have misbehaved. The focus on civil representation reflects an assumption that the well-to-do, those who can afford retainers of thousands of dollars to civil counsel, are the people whom the State Bar should protect.
The third policy choice of the State Bar is that violations of the California Constitution by lawyers rank lower than violations of statutes or rules. In the panoply of lawyer misbehavior, violations of the California Constitution should rank high, but do not.
The first policy choice, that a policing model is best, wreaks havoc with agency efficiency. To understand, one need look no further than the use by fire departments of fire marshals. Those marshals visit businesses and offer free inspections and suggestions for increased fire safety. These are friendly, collaborative contacts. Businesses are told what steps they should take to make their premises less susceptible to fire damage – good for the business and the public. Fire marshals cover many more businesses using this approach than if they entered a business only looking to issue citations which must go to court. If this approach saves more lives from fires than a confrontative approach, certainly it can improve ethics and compliance without so many litigated cases. The same amount of State Bar personnel could cover far more firms.
There are several approaches the State Bar could use. Fire marshals use their visits to give free tips on fire safety. Once or twice a year, the State Bar could send every lawyer a Tiktok or 5-minute video link on a hot button ethics issue. These should be free links, with no sign-in required. If done through YouTube or Tiktok, the State Bar would receive viewer counts so that it could determine which videos are watched the most. With the increasing number of millennial lawyers, this is a better way to educate than simply listing resources on the State Bar webpage.
Another approach would be to offer free mini audits of a lawyer’s trust fund. A small portion of time might be audited and a commitment not to punish any lawyer who comes forward, provided that the lawyer takes the recommended steps to correct any problems within a reasonable time.
A third approach would be an amnesty program. These programs work for guns, most people do not believe lawyers are more dangerous than guns! Lawyers who come forward with their ethical or trust account problems would not be suspended, with some limitations. As presently structured, a lawyer in violation often believes that to admit wrongdoing to the State Bar will cost his or her license and the ability to provide for their family.
The second policy choice, that the State Bar is to help the well-to-do, should also have been visited by the auditor. While the rich should not be subject to ethics and trust account violations, it is inexcusable that they are the priority. Poor people more often encounter lawyers in the criminal justice system. If the State Bar ventured vigorously into criminal justice, it would recognize ethics violations which affect hundreds of thousands each year. Compare that to the few thousands the State Bar currently helps a year. This point leads directly into the third mistaken policy choice.
Although every lawyer will tell you that the state and federal constitution reign supreme, the State Bar pays virtually no attention to large scale California constitutional violations by lawyers. Article I, Section 28(c)(1) of the California Constitution gives victims the right to counsel. Penal Code section 679.026 mandates that prosecutors tell victims of this key right to counsel. Many large prosecutors’ offices, including the Orange County and Los Angeles County district attorneys’ offices, fail to advise victims of this constitutional right. About 500,000 California crime victims each year are not told of this right. To remedy this, the State Bar should jettison its approach of attacking individual attorneys and instead work collaboratively with the district attorneys to solve the problem in their entire offices. If the State Bar were to do this, its efficiency, as measured by how many Californians are helped each year, would go through the roof. And the State Bar would no longer be focused primarily on helping the well-to-do.
Here are the questions for next year’s audit:
Did the State Bar send out any short, free educational videos to lawyers?
Did the State Bar implement any new programs to resolve ethics problems in a less adversarial way?
Did the State Bar reorient to help more poor people?
Did the State Bar take any steps to prevent violations of the California Constitution by lawyers?
If the answer to any of these questions is no, then the State Bar is getting too much money because it is failing to act more efficiently and more equitably.
*On Thurs., April 28, the State Bar’s Ad Hoc Commission on the Discipline System will meet at noon to “overview” the 2022 State Audit and State Bar response, and Client Trust Account Protection Program. The zoom link can be found on the State Bar website.