Report 2022-031 Recommendation 7 Responses

Report 2022-031: The State Bar of California: It Will Need a Mandatory Licensing Fee Increase in 2024 to Support Its Operations (Release Date: April 2023)

Recommendation #7 To: Bar of California, State

To ensure the impartiality of the processing of external disciplinary cases, the State Bar should, by October 2023, formalize the administrator's process for identifying her own and any external investigators' conflicts of interest related to these cases.

1-Year Agency Response

The State Bar has fully implemented this recommendation. The process for identifying the special deputy trial counsel's conflicts was formalized in a policy directive implemented in the spring of 2023, which implemented a uniform process for performing and documenting conflicts checks that are consistent with those completed in the Office of Chief Trial Counsel. A formal memorandum explaining the policy directive was sent to the State Bar Board of Trustees' discipline liaisons in November 2023.

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

6-Month Agency Response

The status of this recommendation has been updated to "not fully implemented" following communication between the State Bar, the independent SDTC administrator, and the State Auditor's office. The current Rule 2201 conflict of interest policy is under evaluation by the State Bar to ensure its thoughtfulness and consistency with other conflict of interest policies within the State Bar. The 2201 program's conflict checks will be formalized in a State Bar policy directive by December 2023.

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

60-Day Agency Response

In April 2023, the Administrator issued an updated policy directive regarding conflict check procedures for the Administrator and individual Special Deputy Trial Counsels (SDTCs). The new directive closely mirrors the definitions of conflicts and the procedures for documenting conflict checks set by the Office of Chief Trial Counsel (OCTC) with some additional adjustments tailored for SDTCs who work in firm settings.

Consistent with OCTC policies and practices, conflict checks are conducted at multiple stages of a case, including at the time of assignment, before filing charges or reaching a settlement, and before closing. For the Administrator and SDTCs who use Odyssey, the conflict check is documented using the "SDTC Conflict Check" event in the system. However, for SDTCs working on files outside the Odyssey system, they complete a certification form that contains the same screening prompts as the event in the Odyssey system. The form is then returned to the Administrator and uploaded to the system to document the conflict check.

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

Although the Administrator issued an updated policy directive, the State Bar has not yet formalized this policy directive. Until it does so, we will assess the status of this recommendation as not fully implemented.

All Recommendations in 2022-031

Agency responses received are posted verbatim.