Report Outlines Defects in State Bar Discipline

Despite a “constructive” response to his initial criticism, California State Bar discipline monitor Robert C. Fellmeth said Monday that the Bar still fails in “critical respects to effectuate an acceptable discipline system.”

Fellmeth was appointed in January by Atty. Gen. John Van de Kamp under a new state law designed to force the Bar to upgrade its system of handling citizen complaints about the state’s 105,000 lawyers. The law requires reports from Fellmeth every five months.

The monitor, who works with the University of San Diego School of Law’s Center for Public Interest Law, mildly commended Bar leaders for increasing salaries for lawyers employed in the discipline arm of the Bar as he had suggested in his first report in June.

“However,” Fellmeth wrote in his 239-page report, released Monday, “the Bar’s discipline system remains seriously defective in six respects. Unless all of these six areas of deficiency are addressed, the discipline system must be considered unacceptable as a mechanism to redress consumer grievances or to decide the fate of accused respondents.”

Fellmeth said that despite some other minor improvements, the discipline system has failed to make any serious dent in a stubborn backlog of 2,500 cases worthy of investigation.

Key changes that must be made, he said, are:

- Adding sufficient investigators at competitive salaries to reduce the backlog.

- Giving the office of trial counsel direct investigative resources to handle special cases such as referrals from prosecutors of attorneys convicted of crimes.

- Adding legal secretaries and adequate word-processing facilities.

- Training attorneys employed by the discipline system in civil discovery powers.

- Hiring six to 10 administrative law judges to replace volunteer or paid referees who hear attorney discipline cases.

- Strengthening the appellate process for complaints against attorneys, which also relies on some volunteer work.

Fellmeth particularly criticized Bar leaders for rejecting his earlier suggestion to seek a $25 increase in State Bar dues for 1988 to fund improvement of the discipline system.

The Bar Board of Governors did cut $1.2 million from non-disciplinary budget expenses to bolster discipline. But they asked the Legislature for approval of only a modest cost-of-living increase of $15, raising dues to a top level of $276 for 1988.

Fellmeth said $30 to $100 per attorney must be sought for 1989 if the discipline system is to be made acceptable.

“It is our position that the Bar is obligated to present to the Legislature what is needed to do the job and refrain from prejudging the outcome,” Fellmeth stated. “We believe that the Legislature will approve needed funds for discipline if the case is made for it.”

Bar President P. Terry Anderlini, in a telephone interview from his San Mateo office, strongly disagreed with the monitor’s statement that attorney discipline is “unacceptable.”

Anderlini said the Bar is “the toughest of all state agencies right now and has a better discipline system than the other major unified bars in the country.”

He said the California Bar disbarred or accepted resignations from 107 attorneys last year, compared to the state’s delicensing of 50 doctors, two accountants and no engineers.

Any major dues increase, Anderlini said, should be phased in over three to five years. He said a one-lump increase of $100 or so “will not be acceptable” to the Legislature or to lawyers.

“We are working on discipline, and we are getting the job done,” Anderlini said. “We are just not getting it done quite as fast as everybody wants us to.”

Fellmeth, with strong support from Van de Kamp, has repeatedly stressed the need for a professionally hired and paid staff of administrative law judges to hear complaints against attorneys.

“The current system is fragmented, inconsistent, unpredictable and unacceptable both in theory and practice,” he said in his report. “The current State Bar Court structure is neither fair, consistent nor credible.”

The court’s executive committee recently took an official position opposing creation of an administrative law judge system. Fellmeth pronounced the move “most unfortunate.”

Bar leaders opposing hired judges claim that the cost would be prohibitive and that the current system utilizing volunteers with some paid referees can be made to work.

“The Bar must press forward aggressively with the reforms it has begun. It must follow through substantively,” Fellmeth urged. “If it does not, the tremendous amount of money, effort and time it has expended on the disciplinary system in the past two years will have bandaged the symptoms without curing the disease.”