Lawyers on Trial : California Bar Reforms System of Disciplining Its Own

The California State Bar, reacting to growing criticism, has reformed its system of disciplining lawyers. The American Bar Assn., which leaves such matters to the local bar associations, says California could become a model for the nation. But the critics say it’s a classic example of the fox guarding the henhouse.

In California, which has more lawyers than any other state, more than 10,000 citizens telephoned the State Bar last year to complain about their attorneys.

Most said their lawyers had disappeared or taken their money or failed to pursue a case. Many said they couldn’t get a phone call returned. Occasionally they claimed a lawyer was addicted to drugs.

Many Are Disbarred

Of those complaints, about one-10th led to formal investigation by the Bar, and a record 134 cases ended with the most extreme censure available--disbarment, which requires approval by the California Supreme Court. That was an increase of 40% over the previous year.

The figures, supplied by the Bar, are fairly staggering. Is California filled with bad lawyers or what?

“You have to realize that one-sixth of all the lawyers in the United States are licensed in California,” said the California Bar’s new chief trial counsel, James Bascue. With increased numbers come increased problems, he said.

With 115,000 lawyers licensed to practice in the state and citizen complaints increasing, the Bar responded to critics of its moribund discipline system with a wave of sweeping reforms, which could become a model for the nation.

“I can’t think of a state that has undergone such a comprehensive overhaul of its discipline system,” said Mark Lyon, disciplinary counsel with the American Bar Assn.’s Center for Professional Responsibility in Chicago.

Washington, D.C., comes in second to California for having the most lawyers within its boundaries, although many of them work in government. New York is third, but the New York discipline system is broken down into districts, with each one supervised by a state appellate court.

With more than half a million lawyers in the United States, the ABA does not supervise discipline, leaving that to state bars. They have set down guidelines on ethics and model rules for discipline.

Lyon said state bar associations occasionally review their systems as a matter of good practice. But the features of the new California system--principally the hiring of paid judges--are unique, he said.

“Some of the reforms are fairly innovative,” he said.

In a major test of California’s new discipline system, celebrity attorney Marvin Mitchelson faces a State Bar trial Aug. 14. Mitchelson is accused of charging “unconscionable fees,” failing to return unearned portions of financial retainers and filing frivolous appeals.

His trial could be among the first heard by a paid full-time Bar judge.

California is adding a staff of nine full-time, paid administrative law judges to preside at trials replacing the 400 part-time volunteer lawyers used in the past. A chief trial counsel was appointed to run the system and an outside monitor was named to keep an eye on things.

Under the new system, most proceedings before the court became public and procedures were shortened and simplified wherever possible. Settlement of claims by the Client Security Fund, which pays clients up to $50,000 of funds misappropriated by lawyers, was accelerated.

California’s lawyers are footing the bill for the discipline reforms, the costs nearly doubling their yearly State Bar dues to $417.

“I never expected the Bar to move as well as it did,” said Robert C. Fellmeth, executive director of San Diego’s Center for Public Interest Law who was a severe critic of the Bar and was chosen as the first outside monitor for the discipline system.

“We now have a system that, to the credit of the Bar, is a model for the country.”

Some Are Not Pleased

Not everyone is elated with the new discipline program.

Philip Martin, a former Bar prosecutor now in private practice in San Francisco, said: “It’s too early to be patting yourself on the back. . . . The reforms have been written down. The backlog still exists and the slowness of the process still exists.”

Martin, who was involved in drafting new regulations for discipline, favored an outside regulatory agency rather than having lawyers do the work.

“The Bar is the only profession in California that still regulates itself,” he said. “It’s the only one where the fox is guarding the henhouse. There is an inherent conflict of interest and that has created a problem.”

But Bascue, the Bar’s first chief trial counsel, said the Bar is capable of cleaning up its own act.

“No one is more upset about misconduct than lawyers themselves,” Bascue said. “They know that the discipline system has been part of the negative image lawyers have with the public.”

“A serious question had been raised about whether it was a good old boys’ network,” Bascue said. The hiring of paid judges, he said, will eradicate the inference that lawyers do not want to discipline their colleagues.

Complaints against attorneys are varied, Bascue said. The most common are failing to keep in touch, letting cases lapse, mishandling client funds and substance abuse.

On a recent day, the Bar court, where attorneys are the only defendants, heard the case of a lawyer who was accused of abandoning his clients and losing a personal-injury lawsuit because the statute of limitations ran out.

Misses the Hearing

When the court convened, the missing lawyer was still missing: He failed to make his own hearing. But there were no delays. Testimony was taken in his absence.

“At first he was very vigorous,” a client testified. “He was out doing everything on our case. I thought he was really fantastic. . . . Then he just disappeared. I called his office many times. I sent registered letters to his home and I couldn’t get in touch with him.”

Kevin Culhane, chairman of the Bar’s discipline committee, said there were more than 5,000 cases in backlog when the Board of Governors began to draft system changes in 1987. They made 100 structural changes and 240 procedural changes, he said.

Culhane reported proudly that the backlog now is down to 1,300 cases. “The way I’m looking at it, there’s not going to be a single case in backlog by the end of my term in 1990.”

Kevin Culhane,chairman of State Bar’s discipline committee

‘The way I’m looking at it, there’s not going to be a single case in backlog by the end of my term in 1990.’