Report 2022-030 Recommendation 13 Responses

Report 2022-030: The State Bar of California's Attorney Discipline Process: Weak Policies Limit Its Ability to Protect the Public From Attorney Misconduct (Release Date: April 2022)

Recommendation #13 To: Bar of California, State

To ensure that it appropriately reviews complaints involving overdrafts and alleged misappropriations from client trust accounts, the State Bar should by July 2022, revise its intake manual to disallow de minimis closures if the attorney has a pending or prior bank reportable action or case alleging a client trust account violation.

Annual Follow-Up Agency Response From November 2024

The pilot bank reportable action (RA) project was completed in 2023, with results reported to the State Bar Board of Trustees in July 2023. As a result, OCTC adopted the pilot bank RA procedures as policy. The bank RA team is now a permanent, dedicated team in OCTC. The supervising attorney responsible for the bank RA team monitors staff compliance related to de minimis closures.

Further, closed bank RAs are included in the random sample of closed cases audited as part of the twice-annual yearly audits. Compliance with de minimis closure procedures would be included in the auditors review of a bank RA. In particular, question 20 of the current audit checklist requires the auditors to address, "Taking into account any history of prior complaints against the Respondent and any patterns of conduct revealed by that history, does the final disposition comply with all applicable office policies, procedures and disciplinary standards, and case law (i.e., was the case properly closed)?" Auditors report in detail on cases that did not follow established procedure and policy.

Because the closed case ("random") audit procedure covers only closed cases, supervisors in OCTC also monitor staff performance, to ensure that staff comply with the policy, consistent with the State Bar's performance evaluation policy. One specific aspect of the evaluation of staff performance is "judgment," which, among other things, requires evaluation of whether staff, during the evaluation period, "comply with all policies and procedures."

In 2024, the State Bar is updating its response to provide additional documentation, namely the revised intake manual, and the two most recent closed case audit reports, to support its assessment that this recommendation is fully implemented. The State Bar is also providing the revised intake manual, updated in September 2024, that clarifies (among other things) the procedures related to de minimis closures.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

The State Bar has fully implemented this recommendation by updating its case processing Intake Manual. Specifically, the manual disallows de minimis closures of a case against an attorney if the attorney has a pending or prior bank reportable action or case alleging a client trust account violation in the last two years preceding a current open case.

1-Year Agency Response

The pilot project was extended to ensure that a sufficient number of cases are handled to provide meaningful data. As a result, the pilot project remains ongoing. Data collection and evaluation is expected to be completed in April 2023, following which any revisions to de minimis closure policies will be made and a monitoring system for compliance with these policies established

California State Auditor's Assessment of 1-Year Status: Pending

We look forward to reviewing the results of this pilot project upon its completion.

6-Month Agency Response

A pilot project for partial implementation of this recommendation was initiated effective August 1, 2022. See supporting documents: CTA/Bank RA Pilot Program Protocol; Pilot Program Protocols.

California State Auditor's Assessment of 6-Month Status: Pending

We look forward to reviewing the results of this pilot project upon its completion.

60-Day Agency Response

Following a June 2, 2022, discussion with the State Auditor regarding resources needed for full implementation of this recommendation, the State Bar is developing a pilot project for partial implementation that will provide necessary data for better assessing resource needs. This pilot project will be developed by July 2022.

California State Auditor's Assessment of 60-Day Status: Pending

All Recommendations in 2022-030

Agency responses received are posted verbatim.