Chapter 1
The State Bar of California Did Not Consistently Discipline Attorneys or Effectively Communicate With Its Stakeholders
Chapter Summary
The State Bar of California’s (State Bar) consistent and effective discipline of attorneys who engage in misconduct is a crucial measure of its success in fulfilling its mission to protect the public. Unfortunately, possibly because of the State Bar’s focus on eliminating its backlog of cases, this did not always occur during the period we reviewed. A key statistic to measure the effectiveness of the State Bar’s attorney discipline system is its backlog of disciplinary cases—that is, those cases that it failed to process within six months. When the State Bar maintains an excessive backlog, it potentially enables errant attorneys to continue to practice law for extended periods of time while their cases are pending and may also prevent the State Bar from resolving cases sufficiently, as we found in 2010 and 2011. Specifically, based on our calculations, in 2010 the State Bar’s backlog peaked at 5,174 cases, up from 4,276 in the prior year. In response to the escalating backlog, the former executive director issued a zero‑backlog goal in mid‑2011. Although the State Bar decreased its backlog by 66 percent over that same year, the severity of the discipline it imposed on attorneys declined and the number of settlements it reached increased. It appears that rather than settling some cases for lower‑levels of discipline, the State Bar should have sought more severe forms of discipline. For example, the California Supreme Court (Supreme Court) returned 27 cases the State Bar settled in 2011 because of the appearance of insufficient levels of discipline. After further review by the State Bar, 21 of these 27 cases went on to receive greater discipline recommendations, including five disbarments.
Given the importance of the backlog as an indicator of the State Bar’s performance, we would have expected it to effectively communicate this indicator and other key disciplinary statistics to its stakeholders. However, the State Bar reports less than what the law permits related to its backlog and did not consistently report attorney discipline statistics in its Annual Discipline Report (discipline report)—the only comprehensive report related to the attorney discipline system that the State Bar submits to the Legislature.
To decrease its backlog in response to the 2011 goal, the State Bar made a number of operational changes, including realigning its staff, increasing its reliance on temporary employees, and authorizing overtime. However, in 2012 the State Bar discontinued most of these operational changes; subsequently, the backlog increased from 1,834 cases in 2012 to 2,174 cases in 2014. We believe this increase suggests that the State Bar needs to evaluate whether to make permanent changes to its operations that would speed up its processing of cases and improve its discipline process. However, the State Bar has not conducted any workforce planning—the process that aligns staffing with an organization’s strategic missions and critical needs—to determine the necessity for such changes.
The State Bar’s Backlog of Disciplinary Cases Negatively Affected the Severity of Discipline That It Imposed on Attorneys
When the State Bar focused its efforts on reducing its excessive backlog of disciplinary cases, the severity of the discipline it imposed on attorneys who failed to fulfill their professional responsibilities decreased. Specifically, based on our calculations, we found that in 2010 the State Bar’s backlog peaked at 5,174 cases.3 This peak was likely in part a consequence of the Supreme Court in 2005 criticizing the State Bar for failing to sufficiently discipline an attorney who was ultimately disbarred. To address the increasing backlog, the former executive director announced a zero‑backlog goal in mid‑2011, and the backlog decreased by 66 percent over the same year. However, the severity of the discipline the State Bar imposed on attorneys also declined during this time period. As a likely result, in 2012, the Supreme Court returned 27 cases to the State Bar for further consideration of the recommended discipline in light of the applicable attorney discipline standards. Thus, in its efforts to reduce its backlog, the State Bar may have been too lenient on attorneys deserving of greater discipline, or even disbarment, potentially at significant risk to the public.
To Reduce Its Excessive Backlog of Attorney Disciplinary Cases, the State Bar Implemented an Unrealistic Zero‑Backlog Goal in 2011
The attorney discipline process plays an indispensable role in ensuring that the State Bar carries out its mission to protect the public. The discipline process includes receiving, investigating, and prosecuting complaints and, if warranted, recommending sanctions against attorneys found culpable of misconduct. According to the State Bar, the performance of its discipline system is a crucial measure of its success in fulfilling its mission, and a key statistic to measure that performance is the six‑month benchmark for resolving complaints. State law identifies as backlogged any cases that the State Bar does not close within this time frame. When the State Bar does not resolve cases in a timely manner, it allows potentially dishonest or incompetent attorneys to continue practicing law while their cases are pending in the backlog.
In 2010 the State Bar’s backlog of disciplinary cases reached a peak of 5,174 cases, as we show in Figure 4. The likely reasons for this excessive backlog were twofold. First, according to the chief trial counsel, the number of complaints against attorneys involved in home loan modifications increased significantly, which put a strain on the State Bar’s discipline system. In support of the chief trial counsel’s assertion, we observed that the number of complaints related to home loan modifications increased from 2,258 to 4,071, as we show in Table 6, or 80 percent, from 2009 through 2010. The table also shows that the State Bar’s total caseload reached a peak of about 35,250 cases in 2010.
Figure 4
California State Auditor’s Analysis of the State Bar of California’s Backlog of Disciplinary Cases as of December 31
2009 Through 2014
Source: California State Auditor’s analysis of data obtained from the State Bar of California’s Discipline Case Tracking System.
| Allegation* | 2009 | 2010 | 2011 | 2012 | 2013 | 2014 |
|---|---|---|---|---|---|---|
| Debt resolution complaint | 47 | 167 | 139 | 27 | 23 | 4 |
| Duties to client | 2,969 | 1,919 | 1,447 | 1,901 | 1,995 | 2,057 |
| Duties to State Bar of California (State Bar) | 563 | 681 | 603 | 460 | 648 | 515 |
| Fees | 3,593 | 4,973 | 3,811 | 3,214 | 2,992 | 1,915 |
| Funds | 1,551 | 1,600 | 1,616 | 1,777 | 1,808 | 1,657 |
| Immigration fraud complaint | 0 | 0 | 0 | 0 | 20 | 19 |
| Interference with justice | 1,711 | 1,495 | 1,401 | 1,013 | 1,188 | 1,209 |
| Loan modification complaint | 2,258 | 4,071 | 4,307 | 2,869 | 2,713 | 1,151 |
| No complaint articulated | 18 | 39 | 5 | 1 | 3 | 0 |
| Performance | 6,699 | 7,911 | 6,010 | 5,248 | 4,820 | 3,803 |
| Personal behavior | 2,192 | 2,900 | 3,440 | 2,135 | 1,968 | 1,743 |
| Professional employment | 565 | 245 | 724 | 211 | 222 | 202 |
| Unauthorized practice of law | 311 | 170 | 33 | 7 | 43 | 51 |
| Would have been sent to enforcement | 0 | 0 | 0 | 0 | 0 | 1 |
| Total allegations | 22,477 | 26,171 | 23,536 | 18,863 | 18,443 | 14,327 |
| Total caseload† | 29,094 | 35,250 | 31,456 | 27,935 | 24,155 | 24,083 |
Source: California State Auditor’s analysis of data obtained from the State Bar’s Discipline Case Tracking System.
* Allegation represents the number of allegations received in each year.
† Caseload represents the sum of cases opened during the year and cases which had not yet been closed from prior years.
In addition, the backlog likely increased because the State Bar took steps beginning in 2006 to impose harsher discipline on errant attorneys. Specifically, as we noted in our July 2009 audit,4 the Supreme Court criticized the State Bar in 2005 for failing to bring all possible charges against an attorney who was ultimately disbarred. The Supreme Court also criticized the State Bar for failing to follow internal guidelines that delineate the appropriate actions that the State Bar should take against attorneys who repeatedly violate professional or legal standards. In response, in 2006 the State Bar’s former chief trial counsel directed staff to apply sanction standards consistently and to take more disciplinary cases to trial if warranted. A year after the former chief trial counsel’s direction, the backlog had increased by about 34 percent.
In late 2010 the State Bar shifted staffing resources from their normal functions, as well as taking other actions, to address the increasing backlog. Further, in mid‑2011 the former executive director issued a zero‑backlog goal, directing staff to completely eliminate the backlog. This goal resulted in a quick and drastic reduction in the backlog, causing it to decrease by 66 percent over the course of a single year—from 5,174 cases in 2010 to 1,742 cases in 2011.
The Backlog Appears to Have Resulted in the State Bar Deciding to Settle More Cases and Disbar Fewer Attorneys
Definitions of the Outcomes of the State Bar of California’s Disciplinary Cases, in Order of Severity
Dismissal: The disposal or end of a disciplinary matter for reasons such as insufficient evidence without a finding of culpability for misconduct by the attorney.
Admonition: A written nondisciplinary sanction issued in cases that do not involve a serious offense and in which the State Bar Court concludes that no significant harm resulted. Only the State Bar Court may impose an admonition.
Reproval: The lowest level of court‑imposed discipline and the only level of discipline the State Bar Court is authorized to impose. An attorney may receive a reproval that includes duties or conditions; however, reprovals do not involve suspension. Reprovals can be either public or private.
Suspension: A public disciplinary sanction that prohibits a member from practicing law or from presenting himself or herself as a lawyer for a period of time set by the California Supreme Court.
Disbarment: A public disciplinary sanction whereby the California Supreme Court expels an attorney from membership in the State Bar of California (State Bar). The attorney’s name is stricken from the roll of California attorneys, and the attorney becomes ineligible to practice law.
Source: State Bar’s 2014 Annual Discipline Report, and the State Bar’s deputy chief trial counsel.
By prioritizing reduction of the backlog, the State Bar may have put the public at risk because it settled more cases for less severe levels of discipline than it otherwise might have. A settlement is defined as a stipulation between the Office of the Chief Trial Counsel and an attorney that includes an agreement on facts, conclusions, and the type of discipline imposed. Settlements can also be agreements in lieu of discipline for low‑level misconduct. Some of the discipline imposed as part of the settlements the State Bar negotiated during the period of backlog reduction should have resulted in more severe forms of discipline—and in some cases, in disbarment. We define the various outcomes of disciplinary cases, including disbarments, in the text box. According to the chief trial counsel, in general, settling a case requires fewer resources than taking a case through trial and ultimately to the Supreme Court—the venue in which the State Bar seeks a disbarment.
In 2010 and 2011, during the years the State Bar focused its efforts on decreasing the backlog, the State Bar settled more cases than in any of the other four years in our audit period and it appears that some settlements should have resulted in more severe forms of discipline. In particular, the State Bar settled 1,569 cases with 1,258 attorneys during 2010 and 2011. The State Bar later imposed discipline on 131 of these 1,258 attorneys for a new complaint that was initiated after the settlement and ultimately disbarred 28 of them. The chief trial counsel agreed that the State Bar’s volume and speed in processing the backlog in 2011 negatively affected the quality of its case settlements. In fact, in 2012 the Supreme Court returned 27 settlements it received from the State Bar due to the appearance of insufficient levels of discipline—all of which the State Bar had settled during 2011. After further review, the State Bar indicated that 21 of these 27 cases received more severe discipline recommendations, including five disbarments.
Moreover, the State Bar settled cases for attorneys who had past disciplinary histories and who likely posed the greatest risk to the public. In particular, as we show in Table 7, the State Bar imposed discipline on 225 attorneys in 2010 and 310 attorneys in 2011 who had been disciplined in the past. During those same two years, the State Bar settled cases for 191 of these attorneys with a prior disciplinary history—a disproportionately high number of settlements compared to the other years in our audit period. The number of formerly disciplined attorneys who received settlements and were later disbarred for another case increased after 2009 as well. Although we acknowledge that there were likely extenuating circumstances that we did not evaluate that contributed to the State Bar settling these cases, our analysis demonstrates the detrimental effect on members of the public who may have received services from these attorneys after the State Bar settled their cases.
| 2009 | 2010* | 2011* | 2012 | 2013 | 2014 | |
|---|---|---|---|---|---|---|
| Number of attorneys with prior discipline who received subsequent discipline | 147 | 225 | 310 | 203 | 217 | 200 |
| Number of previously disciplined attorneys who received settlements | 37 | 84 | 107 | 42 | 53 | 66 |
| Number of attorneys who received settlements and were subsequently disbarred | 4 | 10 | 7 | 8 | 0 | 0 |
Source: California State Auditor’s analysis of data obtained from the State Bar of California’s Discipline Case Tracking System.
Note: As more time passes, the number of disbarred attorneys who initially received settlements from 2009 through 2014 may increase.
* Includes one attorney who also received a settlement in 2009.
Furthermore, the severity of several types of discipline that the State Bar imposed from 2009 through 2014 strongly statistically correlates to its backlog. A statistical correlation, expressed as a number ranging from ‑1.0 to 1.0, shows the extent to which one variable increases or decreases in relation to another. A positive coefficient indicates that one variable increases with an increase in the other variable, while a negative coefficient denotes a decrease in one variable with an increase in the other. As we show in Figure 5, the least severe outcomes of discipline cases—dismissals and reprovals—increased as the backlog increased. Conversely, the most severe forms of discipline—suspensions and disbarments—decreased as the backlog increased. The increased backlog most strongly correlated with decreased disbarments. We caution that correlation does not necessarily prove causation. In other words, the relationships we noted do not necessarily demonstrate that the increased backlog caused the changes in the severity of the State Bar’s discipline. However, the strength of the relationship between these variables indicates that they are linked.
Figure 5
Strength of the Relationships Between the State Bar of California’s Backlog and the Types of Discipline It Imposed
Source: California State Auditor’s analysis of data obtained from the State Bar of California’s Discipline Case Tracking System.
Note: During the period we reviewed, there were not enough admonition cases to make a statistical correlation.
According to the chief trial counsel, a key factor that enabled the State Bar to decrease its backlog in 2011 was its insufficient quality control at a time when staff were trying very hard to meet what she believed to be an arguably unrealistic goal. Specifically, when the chief trial counsel assumed office in October 2011, she learned that the State Bar did not require review by management, supervisors, or peers before filing or settling cases. She also described several operational changes that the State Bar used to reduce the backlog related to shifting staffing resources, which we discuss later in this chapter.
Since assuming office, the chief trial counsel has taken steps to monitor the backlog and to ensure quality control over case processing. Specifically, she noted that the management of the Office of the Chief Trial Counsel monitors the backlog weekly and submits monthly reports to the Board of Trustees (board). Furthermore, in late 2011 she began providing training and development programs for State Bar staff, and in 2012 she implemented a policy requiring managerial review of all decisions on cases, including settlements. Moreover, the State Bar updated its attorney sanction standards in 2014 and again in 2015, according to the deputy chief trial counsel, to provide more clarity and certainty for the appropriate levels of discipline.
The State Bar Has Not Been Transparent When Reporting Its Backlog and Other Attorney Discipline Statistics
The State Bar has made missteps in its reporting of attorney discipline statistics to its key stakeholders, including the Legislature. State law requires the State Bar to prepare a discipline report, a public document that it must present to the governor, the chief justice, and specified legislative members and committees to enable them to evaluate the performance of its attorney discipline system. According to state law, the State Bar must include specific information in the discipline report, such as its existing backlog of discipline cases and the speed with which it has handled complaints. However, the State Bar reports less than what the law permits related to its backlog. Moreover, the State Bar has frequently changed its criteria and methodologies for how it gathers the information included in its discipline reports and, more importantly, did not always fully disclose the changes made in its criteria and methodologies. Despite improvements in recent years, because the discipline report is the only report that the State Bar must submit to the Legislature that describes the performance of its discipline system as a whole, it is critical that it contain useful and consistent information.
Despite Recent Improvements, the State Bar Continues to Report Less Than What the Law Permits Related to Its Backlog
The state law that requires the State Bar to submit the discipline report defines the backlog as the number of cases within the discipline system, including, but not limited to, the number of unresolved complaints as of December 31 that the State Bar had received more than six months earlier. However, in each of the past six years, the State Bar reported less than what the law permitted related to its backlog—the same concern that we raised in our 2009 report—and as a result, the State Bar’s stakeholders may not be fully informed about the status of the backlog. To illustrate, we calculated the State Bar’s backlog using its Discipline Case Tracking System and compared it to what the State Bar reported in each of its discipline reports from 2009 through 2014. As we show in Figure 6, even though the backlog reported by the State Bar has become closer to the backlog we calculated in recent years, our calculation still reveals a backlog that is slightly higher than what the State Bar reported in 2014.
Figure 6
State Bar of California Reported Backlog Versus California State Auditor’s Analysis of Backlog
2009 Through 2014
Sources: State Bar of California’s (State Bar) Annual Discipline Reports for 2009 through 2014, and the California State Auditor’s analysis of data obtained from the State Bar’s Discipline Case Tracking System.
The differences between how we calculated the State Bar’s backlog and the State Bar’s method for calculating its backlog primarily relate to the types of discipline cases included. In particular, because state law defines the State Bar’s highest priority as protecting the public by exercising its licensing, regulatory, and disciplinary functions, we believe the appropriate method of calculating the State Bar’s backlog would be to include every case that affects public protection. Currently, the State Bar does not include every such discipline case. In Table 8 below, we show the types of cases that the State Bar reported as its backlog since 2009, as well as all the types of cases that affect public protection. By not including all the types of cases that affect public protection, the State Bar limits its stakeholders’ ability to assess the performance of the discipline system.
| Description | 2009 | 2010 | 2011 | 2012 | 2013 | 2014 |
|---|---|---|---|---|---|---|
| Suspended cases | ✓ | ✓ | ✓ | ✓ | ✓ | |
| Cases six to 12 months old designated as complex | ✓ | ✓ | ✓ | ✓ | ✓ | |
| Non‑complex investigations | ✓ | ✓ | ✓ | ✓ | ||
| Stipulations not yet filed | ✓ | ✓ | ✓ | |||
| Closed cases that were later reopened | ✓ | ✓ | ✓ | ✓ | ||
| Violations of previously imposed discipline | ✓ | ✓ | ||||
| Professional misconduct in other jurisdictions | ✓ | ✓ | ||||
| Failure to comply with the duties of disbarred, resigned, or suspended attorneys | ✓ | ✓ | ||||
| Complaints | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| State Bar of California (State Bar) initiated | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| Reportable actions in intake* | ✓ | ✓ | ||||
| Probation referrals | ✓ | ✓ | ||||
| Resignation processing, with charges pending† | ✓ | ✓ | ||||
| The State Bar does not include the cases below this line in its backlog calculation‡ | ||||||
| Enforcement of a fee arbitration decision | ||||||
| Monitoring an attorney's conviction in another court | ||||||
| Disbarred or resigned attorneys practicing law | ||||||
| Unauthorized practice of law | ||||||
| Violation of the conditions of probation | ||||||
| Inactive enrollment for mental illness, harm, or other cause | ||||||
| Petition to assume jurisdiction over a law practice | ||||||
Sources: State Bar’s chief trial counsel and former budget director.
* According to the chief trial counsel, before 2013 the State Bar included reportable actions in its backlog count only if it forwarded the case to be investigated.
† Includes a resignation processing case type, which does not have a significant effect on public safety, in its backlog calculation.
‡ The State Bar does not include all case types that can have an effect on public safety in its backlog calculation.
Moreover, the State Bar used a different methodology each year to calculate its case backlog and presented the backlog in a manner that was inconsistent with the prior year’s report, which may have further limited the discipline report’s usefulness. As we show in Table 8, the State Bar added or removed different types of cases when reporting its backlog for each year from 2009 through 2014. For example, in the 2009 discipline report, the State Bar included only complex cases that were older than 12 months in the backlog; however, in the 2010 discipline report, it modified its calculation of the backlog by also counting complex cases that were between six and 12 months old. In another example, the State Bar did not begin counting reportable actions—mandatory notifications of attorney misconduct—in the backlog until the 2013 report. Most recently, in 2014 the State Bar began to report reopened cases in the backlog only for the years they were open rather than also reporting them for the years they were closed.
In all years we reviewed except for one, the changes the State Bar made in its methodology resulted in it increasing the prior year’s backlog from what it had previously reported to the Legislature, as shown in Figure 7. For example, the 2012 discipline report indicated that the State Bar’s backlog for 2012 was 1,469 cases. A year later, in its 2013 discipline report the State Bar reported that the 2012 backlog should have been 1,718 cases—249 more cases than it reported in its 2012 report. This increase occurred because it added six types of cases to the backlog.
Figure 7
Backlog Counts That the State Bar of California Reported in Its 2009 Through 2014 Annual Discipline Reports
Sources: State Bar of California’s (State Bar) Annual Discipline Reports for 2009 through 2014.
Note: State law requires the State Bar to report the current year’s backlog, as well as the backlog for the three previous years.
The former director of Budget and Performance Analysis (former budget director), who was responsible for compiling the discipline report, stated that the State Bar changed its backlog calculation from year to year in order to report information in a more complete manner. He also told us that he changed the methodology when he learned which cases and calculations he should and should not include; however, the State Bar did not fully disclose the changes in the methodologies in its discipline report. State law requires the State Bar to report information in its discipline report in a consistent manner to allow for year‑to‑year comparisons. To mitigate the difficulty of comparing discipline reports that use different backlog methodologies, the State Bar includes in its discipline reports the backlog numbers for the four preceding years that it determined using the most current year’s methodology. However, without an accompanying explanation for everything that changed and why, the State Bar falls short of the law’s requirements and risks misleading those who rely upon the report’s content to make critical decisions.
At the time of our 2009 audit, we believed that the State Bar’s stakeholders, including the Legislature, would benefit from having more complete and clear measures of the backlog. Although we did not recommend a change to state law or that the State Bar include additional types of cases in the backlog, we recommended that the State Bar disclose the composition of the backlog and include an explanation for the cases it excludes. The State Bar implemented our recommendation in its 2009 and 2010 discipline reports, which it published in the two years following our audit; however, it stopped fully describing the methodology it used to calculate its backlog beginning in its 2011 discipline report and for each year thereafter. For example, in its 2011 report the State Bar highlighted its backlog reduction in its report. However, it began including unfiled settlement cases in its backlog in its 2012 discipline report and did not mention the addition of these cases in the report. Because the State Bar did not disclose this change, a reader might not notice that it had adjusted the backlog number it reported for 2011 to include unfiled stipulations, increasing the backlog it previously reported by 133 cases.
As a result of the State Bar’s failure to fully implement our 2009 recommendation, we are concerned that without a more specific definition of backlog in state law, the State Bar may continue to report less than what the law permits and may again change its methodology without fully disclosing the changes. The former budget director stated that the State Bar would benefit from additional discussion with the Legislature to better define what it would like the backlog to include. We commend the State Bar’s efforts to include more types of cases in its backlog, but additional steps are necessary to ensure that it reports useful and consistent information related to its backlog of discipline cases.
The State Bar Has Used Inconsistent Case‑Processing Metrics
Weaknesses related to the manner in which the State Bar presents case‑processing times in its discipline reports may also impede the reports’ usefulness to stakeholders. As it did with its backlog reporting, it changed the methodology it uses to report case‑processing times without specifically disclosing the change. In particular, in the 2009 and 2010 reports, the State Bar presented case‑processing time using an average number of days. Then, in the 2011 and 2012 reports, it used both the average and median number of days to express case‑processing time, and began including the 90th percentile of case‑processing times—a measure that indicates the number of days within which the State Bar processes 90 percent of its cases. The State Bar again changed its methodology—without disclosing the change—in its 2013 and 2014 discipline reports, when it stopped reporting the average days for case‑processing time.
By excluding the average case‑processing time, the State Bar now emphasizes in its report summaries only the statistic that shows its case‑processing time in a more favorable light. For example, the summaries to the 2013 and 2014 discipline reports highlight only the median case processing times. Although the median statistic can provide valuable information, the State Bar chose to include only the measure that depicts a faster case‑processing time in its report summary and to exclude the measure that paints a different picture. As shown in Figure 8, the median case‑processing time was consistently lower than the average each year from 2009 to 2014. Moreover, the introductions to the 2013 and 2014 discipline reports states that they present data based on the average times for processing complaints through the discipline system rather than the median times—a statement that is misleading to readers.
Figure 8
State Bar of California’s Average and Reported Median Case‑Processing Times
2009 Through 2014
Sources: State Bar’s Annual Discipline Reports for 2009 through 2014, and the California State Auditor’s analysis of data obtained from the State Bar’s Discipline Case Tracking System.
According to the former budget director who prepared the data for the discipline report, he believed that the median was a more reliable statistic to use than the average because it did not include the outliers—a small number of cases with high or low case‑processing times. His rationale related to outliers is valid; however, the State Bar should have disclosed the methodology change, as well as the rationale for the change, in its discipline reports. We believe that presenting both the median and the average will increase the amount of information available to stakeholders. Moreover, in its 2012 and 2013 discipline reports the State Bar chose to highlight its success in decreasing the case‑processing time by selectively comparing its current median to past medians when they were at their highest points. This decision appears to indicate that the State Bar has chosen the more favorable measure with which to depict its efficiency in processing cases. As an example, in its letter to the Legislature and governor accompanying its 2013 discipline report, the State Bar noted that its median case‑processing time for 2013 was 249 days, compared to 492 days and 462 days in 2009 and 2010, respectively. However, the State Bar omitted its median case‑processing times of 392 days and 235 days in 2011 and 2012, respectively. If the State Bar had included the 2012 statistic in the letter, it would have disclosed the fact that its median case‑processing time had increased slightly, from 235 days in 2012 to 249 days in 2013.
We also expressed concerns in our 2009 audit with the manner in which the State Bar reported case‑processing times. In particular, we found that the State Bar calculated case‑processing times by averaging its case‑processing times from 1999 forward rather than reporting a separate average for each year. At that time, we concluded that this methodology did not meaningfully measure its yearly case‑processing times because it included data from years other than the relevant reporting year and because the number of cases from which the State Bar computed the averages continued to grow. We recommended that the State Bar discontinue using this methodology. Although the State Bar implemented our recommendation, its current method of reporting case‑processing times produces results that are once again less useful than they could be.
The State Bar Has Not Ensured That Its Discipline Reports Contain Useful and Consistent Information
The State Bar limited the ability of stakeholders to use its discipline reports to assess the cost‑effectiveness of its discipline system because, in 2012, it changed the methodology it employed to calculate its general fund discipline costs and did not disclose the change. As a result, the costs of the discipline system seemed to decrease significantly when in fact they remained relatively constant. Specifically, as we show in Figure 9, the State Bar reported that its 2012 discipline costs were $51.8 million, which included administration costs. However, in the 2013 discipline report, the State Bar excluded administration costs from its discipline costs, and as a result, the State Bar reported a lower amount of $36.4 million for discipline costs for 2012. According to the director of finance, the State Bar decided to remove the administrative costs from the total discipline system expenditures because managers within the State Bar had no control over these costs. We do not disagree with the State Bar’s current methodology of calculating discipline expenditures; however, by not disclosing the change in the methodology, the State Bar may have misled the Legislature and others to believe that discipline costs had decreased.
Figure 9
State Bar of California’s Discipline System Expenditures
2009 Through 2014
Sources: California State Auditor’s analysis of the State Bar’s accounting reports and Annual Discipline Reports for 2009 through 2014.
Note: Beginning in 2012 the State Bar revised its reporting of discipline costs to exclude administration costs, but began to include them again in 2014.
The problems that we identified with the discipline reports may partly be due to the fact that the State Bar has not established adequate controls to verify the reports’ reliability. Although the board approved a resolution in 2014 specifying the types of information that the State Bar should include in the discipline reports, it has not taken sufficient steps to ensure that they contain accurate and complete information. For example, the board does not review the discipline report before the State Bar submits it to the Legislature. Moreover, the State Bar has no policy or procedure that dictates how it will compile or review the discipline reports. In fact, the former budget director compiled the data for the past five discipline reports, but no one verified the way the information was gathered or how the calculations were made. According to the vice president of the board, the board’s faith in the accuracy and completeness of the discipline reports was based on its review of metrics reported throughout the year, the involvement of the acting general counsel, and its trust in the competence and skill of the staff compiling the reports.
The State Bar Has Not Performed Adequate Workforce Planning, Which May Have Limited the Effectiveness of Its Discipline System
As previously discussed, the State Bar was able to decrease its backlog after making operational changes in response to its former executive director’s zero‑backlog goal in mid‑2011. However, after abandoning all but one of those changes, the State Bar’s backlog is once again increasing. Because many of the 2011 operational changes involved devoting more staff resources to case processing, the recent increase in the backlog suggests that additional staff may be necessary within the State Bar’s discipline system. However, the State Bar has not conducted any workforce planning to support or refute this supposition. Workforce planning is the process that aligns staffing with an organization’s strategic mission and critical needs. Thus far, the State Bar’s efforts to align its staffing with its mission have fallen short.
The State Bar Has Not Established Consistent Goals for Processing Disciplinary Cases
Establishing a mission and strategic goals is critical to ensuring the successful outcome of an organization’s operations and is typically the first step in workforce planning. State law identifies the State Bar’s mission as the protection of the public through exercising its licensing, regulatory, and disciplinary functions and, according to the State Bar, the attorney discipline system plays an indispensable role in carrying out this mission. The State Bar defines the size of its backlog as a key measure of the performance of its attorney discipline system. Thus, we would have expected the State Bar to have established and thoroughly analyzed and documented a goal for an acceptable backlog that would assist it in meeting its mission. However, it has not done so. In particular, although it set a zero goal for its backlog in 2011 and a subsequent goal of keeping its backlog of active cases to less than 15 percent, the State Bar did not document either of those goals. Since 2007 the State Bar has changed its backlog goal four times: from 200, to 250, to zero, to less than 15 percent of all active cases (its current goal). The State Bar does not include suspended cases—cases that are on hold for various reasons, such as anticipated disbarment in another matter—in its current backlog goal.
The State Bar’s backlog goal changed, in part, as a result of changing leadership within the State Bar. For example, a former chief trial counsel noted that the 2007 goal of 200 cases in backlog was too aggressive and subsequently increased the goal to 250 cases—a goal that the State Bar still did not meet. The chief trial counsel stated that the current goal of maintaining less than 15 percent of active cases in its backlog originated from discussion with the board’s regulation and discipline committee (discipline committee). She believes that active cases, rather than suspended cases, are the most relevant measure on which to base the backlog goal, even though the State Bar reports both types of cases in its discipline report. As of December 31, 2014, the goal of having less than 15 percent of all active cases in its backlog equates to having no more than about 480 active cases in backlog. Although the State Bar has met the 15 percent goal consistently since the Office of the Chief Trial Counsel implemented it in 2011, its total backlog—including both active and suspended cases—has increased each year since that time, indicating that the goal may not be effective in reducing the overall backlog. Moreover, the vice president of the board stated that she views having less than 10 percent of active cases in the State Bar’s backlog as an indicator that the Office of the Chief Trial Counsel is processing cases efficiently. Thus, additional steps are necessary to ensure that the State Bar has a reasonable and documented goal for its backlog that can assist it in accomplishing its mission of public protection.
The State Bar Has Not Determined the Sufficiency of Its Staffing Level for the Discipline System
Workforce planning requires an organization to identify the staffing levels it needs to fulfill its goals once it has defined them; however, the State Bar has not determined the necessary staffing level to minimize its backlog while at the same time ensuring the effectiveness of its attorney discipline system. As noted previously, the State Bar was able to significantly decrease its backlog from 5,174 cases in 2010 to 1,742 cases in 2011. According to the chief trial counsel, in addition to compromising the quality control of cases, the significant decrease in the backlog was a result of the following operational changes:
- Reassigning staff from working on other duties within the Office of the Chief Trial Counsel to focus exclusively on decreasing the backlog.
- Authorizing a significant amount of staff overtime.
- Increasing its reliance on contract employees.
In 2012 the Office of the Chief Trial Counsel disbanded the staff that had been assigned to work exclusively on the backlog and began significantly decreasing its overtime costs. In addition, the chief trial counsel stated that she transitioned her staff to a new staffing model to prosecute cases and implemented missing quality control measures. Potentially as a result of these changes, the backlog increased from 1,742 cases in 2011 to 2,174 cases in 2014—a 25 percent increase. The State Bar’s ability to decrease its backlog by making operational changes, and the subsequent increase in backlog after it discontinued those operational changes, suggests that the State Bar needs to evaluate whether it needs to make permanent changes to its operations.
In particular, the State Bar may need more staff within the Office of the Chief Trial Counsel to maintain its backlog at acceptable levels. For example, in 2010 the Office of the Chief Trial Counsel had 163 permanent staff and three temporary employees who processed discipline cases. The next year, the Office of the Chief Trial Counsel hired two additional permanent staff and seven temporary employees for this activity. However, since 2012 the Office of the Chief Trial Counsel’s total number of staff has declined, and in 2014 it employed only two more staff than it did in 2010—the year the backlog reached its highest point. Moreover, since 2009 the Office of the Chief Trial Counsel has increasingly relied on temporary employees, which also indicates that its current number of permanent employees may be insufficient.
Further, the relationship that we previously noted between the size of the State Bar’s backlog and severity of discipline it imposes may be relevant because the State Bar’s backlog has increased over the past three years. For example, the State Bar should determine the relationship between its staff resources and its ability to process cases quickly so that it can arrive at a justified staffing level. Moreover, the State Bar should investigate whether a small backlog allows it to seek disbarment for a larger number of attorneys when appropriate because it has available resources to pursue those cases. According to the chief trial counsel, settling a case generally requires fewer resources than processing a case through trial; thus, if the State Bar has insufficient resources, it may have an incentive to settle more cases before a trial that it otherwise would.
The chief trial counsel noted that having more staff within the Office of the Chief Trial Counsel would be beneficial. According to the acting executive director, the State Bar has had difficulty hiring additional employees because it cannot compensate them at levels comparable to the private sector. The chief trial counsel also cited deficiencies in the State Bar’s recruiting and stated that she has not requested any additional positions in part because of budgetary constraints and the lack of space in the new Los Angeles building. In an effort to increase staff productivity, she implemented a training program and addressed staff performance issues. Nevertheless, the State Bar has not taken the steps necessary to determine whether its staffing is sufficient.
The State Bar Has Established Only Limited Case‑Processing Policies and Procedures, to Which Its Staff Inconsistently Adhere
Workforce planning requires that an organization provide its staff with the necessary tools to perform their jobs effectively. However, the State Bar has yet to fully implement this step. In particular, although the State Bar recently created a draft of a policy and procedures manual for its intake unit, it does not have an investigations manual containing the policies and procedures needed to guide staff in accomplishing their duties. The State Bar does have some policy directives which, among other things, guide staff in their work. However, the manager of investigations believes an updated, unified policy manual is critical, as the lack of a central resource for staff has caused confusion and inconsistencies.
We found evidence of the detrimental effect of the State Bar’s failure to establish such updated policies and procedures in our review of investigation case files. Specifically, our review found varying levels of documentation in the files. For example, the files inconsistently included an investigation plan, which is a document that the State Bar requires investigations staff to use. The investigation plan functions as a roadmap for how the investigator intends to conduct the investigation, based on the specific needs of the case, and it should be updated continually as the case progresses. According to the investigations manager, if the supervising attorney decides that the investigation plan is unnecessary because, for instance, prosecution is already pending, the State Bar can waive the investigation plan and place a memo in the file to document that the plan is not required. Of the 15 investigation files we reviewed during our audit, five did not contain investigation plans, but only one contained the required waiver memo.
We also found investigation files that did not contain evidence of an interview with the complaining witness. In some cases, the complaining witness does not cooperate with an investigation or cannot be contacted, and the investigator will document evidence in the file supporting his or her attempts to perform an interview. In other cases, the supervising attorney may make a determination that an interview is not needed and place a waiver in the file. However, we found four investigation files that did not contain evidence of the interview or a reason for its absence. Without a set of updated policies to ensure uniformity in the quality of its investigations, the State Bar cannot provide assurance that each case received the level of attention that it required.
Lacking Independence and Stability, the State Bar’s Audit and Review Unit Does Not Provide Effective Oversight of the Office of the Chief Trial Counsel
The State Bar’s audit and review unit lacks the independence and stability needed to provide effective oversight of the Office of the Chief Trial Counsel’s processing of disciplinary cases. Created in August 2004, the audit and review unit has two functions: to perform random audits of closed cases and to perform reviews when complainants request that the State Bar reexamine closed cases. As of January 2015 the unit consisted of four staff attorneys who perform reviews and a supervising attorney. The unit contracts with an independent attorney to conduct its random audits.
To perform its audit function, the State Bar’s policies require that twice a year the audit and review unit review at least 250 recently closed disciplinary cases. As part of this review, it must complete a checklist to determine whether staff followed State Bar polices and if their actions were consistent with case law. After each semiannual review, the audit and review unit must prepare a report of the deficiencies it found that offers recommendations for improvement, which it must then submit to the Office of the Chief Trial Counsel for implementation. Our review of these reports found that the audit and review unit generally recommended that the Office of the Chief Trial Counsel’s managers meet to discuss how to prevent future deficiencies and recommended that the office train staff on the problem areas it identified. In addition, the audit and review unit recommended that the Office of the Chief Trial Counsel follow up on concerns it observed with the handling of specific cases.
However, the State Bar was not able to provide sufficient evidence that the Office of the Chief Trial Counsel implemented the audit and review unit’s recommendations. We reported in our 2009 audit that the State Bar’s audit and review unit could be more effective if it ensured that its recommendations were implemented. Since the release of that report, the State Bar implemented a policy directing the Office of the Chief Trial Counsel to provide any recommended staff training and to conduct managers’ meetings to discuss audit findings. Although the State Bar asserted that the Office of the Chief Trial Counsel conducted the recommended meetings and training for all 11 of the reviews that the audit and review unit issued after the State Bar implemented this policy, it was only able to provide complete evidence that it held meetings and trainings for six of the reviews. Thus, the State Bar cannot demonstrate that the semiannual audits have provided the intended benefit of ensuring that the Office of the Chief Trial Counsel’s actions are appropriate and consistent with its policies and procedures and that it complies with statutory provisions and case law precedent.
In addition, although the State Bar indicated that the audit and review unit selects the closed cases at random, its process allows for the Office of the Chief Trial Counsel to replace cases that cannot be readily located. Currently, a systems analyst who reports directly to the chief trial counsel selects the cases using the random number generator function in her spreadsheet software. She provides the list of cases to the file retention unit within the Office of the Chief Trial Counsel to locate the supporting case files. However, the file retention unit does not always select the cases on the systems analyst’s list; instead, it selects only the files from the list that are readily available. If the file retention unit cannot locate a case file, it will replace the missing file with a different file of its choosing. Consequently, when we reviewed four cases, we identified two instances in which the file retention unit replaced cases the system analyst had selected. However, the State Bar does not track when the file retention office replaces cases. For both cases we identified, the supervisor of the audit and review unit indicated that the originally selected cases had been unavailable because they were still under investigation and therefore were not considered closed. Nonetheless, the State Bar compromises the random selection process when it replaces cases without the involvement of the audit and review unit.
The audit and review unit’s other function is to review complainant requests to reopen closed cases, known as second‑look reviews, and to grant those requests when appropriate. As part of the second‑look review, the audit and review unit will reopen a case when it finds the Office of the Chief Trial Counsel abused its discretion in closing a case or when the complainant provides new material evidence. According to the Office of the Chief Trial Counsel’s internal reports, the audit and review unit received 1,029 requests for second‑look reviews in 2014. It resolved 1,466 requests during that time, resulting in the reopening of 97 cases.5 The only other option available to complainants who wish to appeal the Office of the Chief Trial Counsel’s decisions to close cases is to submit a Walker Petition—a petition for review—to the Supreme Court. According to the State Bar, the Supreme Court will order in favor of a complainant’s request to reopen a case only if it determines that the Office of the Chief Trial Counsel arbitrarily failed or refused to take appropriate action on the matter. The State Bar believes the process of submitting a Walker Petition requires more effort for a complainant due to the amount of documentation required.
Without notifying the board, the former chief trial counsel disbanded the second‑look review function of the audit and review unit in 2010 and redirected the unit’s staff to help reduce its discipline case backlog. As a result, complainants who wanted to dispute case closures had to file Walker Petitions during this time rather than requesting second‑look reviews from the audit and review unit. Subsequently, the number of Walker Petitions increased from 203 to 435, or 114 percent, from 2009 to 2010. The State Bar reinstated the audit and review unit’s second‑look review function in February 2011, at which time the number of Walker Petitions submitted declined drastically, to 193 in 2011. Given the important benefits that the audit and review unit provides to complainants, we question why the former chief trial counsel disbanded its review function, especially without notifying the board. Although the current chief trial counsel stated that she does not believe the audit and review unit should have been disbanded and she has no plans to do so in the future, she acknowledged that there are currently no policies or procedures in place to prevent the State Bar from dismantling the audit and review unit in the future.
The audit and review unit is unable to ensure that it operates effectively because it is part of the Office of the Chief Trial Counsel. In fact, the unit’s supervisor directly reports to the chief trial counsel and receives an annual performance appraisal from her. Moreover, the independence of an agency’s audit function is critical to assuring that audits are objective and are not subject to undue influence. When an auditor reports directly to the auditee—in this case, the chief trial counsel—it creates a risk that the auditee will be able to minimize or fail to act upon findings resulting from an audit or review. We believe a change to the State Bar’s organizational structure related to the audit and review unit would increase the independence and effectiveness of its audits and ensure the unit’s stability in providing reviews. Specifically, the audit and review unit should cease reporting to the chief trial counsel and should instead report to a separate individual or body.
Recommendations
To ensure that its backlog does not adversely affect the quality of the discipline it imposes on attorneys who fail to fulfill their professional responsibilities, the State Bar should adhere to its quality control processes. Further, it should take steps to prevent its management or staff from circumventing those processes, such as requiring the presentation to the board of any proposed changes to quality control.
To ensure that it consistently counts and reports its backlog of disciplinary cases, the State Bar and the Legislature should work together to determine what cases the State Bar should include in its backlog. For example, one method of calculating the backlog would be to include every case that affects public protection that the State Bar does not resolve within six months from the time it receives a complaint. The Legislature should then amend the state law that currently defines how the State Bar should present the backlog in its discipline report. In the interim, the State Bar should comply with our 2009 recommendation to fully disclose the types of cases it includes and excludes from its backlog calculation, as well as any methodology changes from the prior year.
To provide clear and reliable information to the Legislature, the governor, and the public, the State Bar should define how it calculates case‑processing speeds in its discipline report and should report this metric using the same method each year. If the State Bar elects to continue presenting the median case‑processing time, it should also present the average case‑processing time. Finally, it should fully disclose any methodology changes from the methodology used in the prior year.
To assure the Legislature and the public that the data in the State Bar’s discipline reports are accurate, the board should implement controls over the accuracy, consistency, and sufficiency of the data gathered and methods used to compute the information included in the report. For example, the board could expand the role of an existing board committee—such as the regulation and discipline committee—to include a review of the discipline report and the underlying discipline statistics.
To align its staffing with its mission, the State Bar should engage in workforce planning for its discipline system. The workforce planning should include the development and formal adoption of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
To ensure that the audit and review unit’s random audits of closed case files provide an effective oversight mechanism, the State Bar should follow its policy to conduct and record meetings and trainings related to the audit report’s recommendations. Additionally, the audit and review unit should oversee the retrieval of cases files for audit to ensure that it maintains control over its random selection of cases.
To ensure that the review function within the audit and review unit continues to provide a means for complainants to appeal the State Bar’s decisions on closed cases, the State Bar should implement a policy that prohibits the chief trial counsel from dissolving the review function of the audit and review unit. Alternatively, at a minimum, it should require board approval for such an action.
To provide independent oversight of the Office of the Chief Trial Counsel and assurance that it properly closes its case files, the audit and review unit should report to an individual or body that is separate from the chief trial counsel, such as the executive director or the board.
Footnotes
3 Because we have concerns with the manner in which the State Bar calculated and reported its backlog from 2009 through 2014, we calculated the State Bar’s backlog using data from its discipline system. We describe our concerns with the State Bar’s methods later in this chapter. Go back to text
4 State Bar of California: It Can Do More to Manage Its Disciplinary System and Probation Processes Effectively and to Control Costs, Report 2009‑030. Go back to text
5 The audit and review unit also resolved some requests originating in prior years. Go back to text