Report 2022-030 Recommendation 14 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 #14 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, establish a monitoring system to ensure staff are following its policies for de minimis closures.

Annual Follow-Up Agency Response From November 2024

The bank reportable action (RA) pilot project was completed in 2023, with results reported to the State Bar Board of Trustees in July 2023. As a result, the Office of Chief Trial Counsel (OCTC) adopted the pilot 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 among the closed cases from which the random audit selects its sample for auditing; 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 related to the external closed case audit to support its assessment that this recommendation is fully implemented.

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

The State Bar has fully implemented this recommendation. Specifically, the State Bar in December 2024 codified a policy with procedures that staff must follow for de minimis closures. The State Bar monitors compliance with all Office of Chief Trial Counsel policies, which now includes this new policy, through a random external audit of closed cases.

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: Partially Implemented

The State Bar has begun a pilot program in which it will review a sample of client trust accounts cases, regardless of the amount of the violation, and will seek bank records for each case. We look forward to reviewing the results of this pilot program. However, the State Bar continues to close other cases as de minimis. The State Bar should establish some type of monitoring to ensure that those de minimis closures are in alignment with its existing policies.

60-Day Agency Response

Following a June 2, 2022, discussion with the State Auditor regarding resource needs 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. The pilot project will include monitoring based on case management system data for de minimis closures and 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.