Proposal Aims to Revamp Lawyer Discipline Rules

“The public regards lawyers with distrust. They think lawyers are smarter than the average guy, but use their intelligence deviously. Well, they’re wrong. Usually they’re not smarter.”

--Trial lawyer F. Lee Bailey

Distrusting Californians filed 5,267 formal complaints with the California State Bar last year about what they considered devious, unethical, incompetent or downright dishonest conduct by a lawyer.

In the past, such charges could languish for years in a system widely acknowledged as overtaxed and ineffective. But now the Bar, which is responsible for watching over the state’s 124,000 lawyers, is trying to solve that problem with a revamped disciplinary process led by the new Bar Court, which is the first of its kind in the nation.

The Bar Court, made up of nine salaried, full-time judges selected by the state Supreme Court, replaced about 400 part-time, volunteer attorneys in hearing allegations that lawyers broke the law, neglected clients, mishandled funds or engaged in other types of professional misconduct.

The remodeled system could achieve a legal milestone if the Supreme Court approves a proposal to give the Bar Court unprecedented final authority to disbar or suspend errant attorneys--a task the high court now performs after reviewing recommendations by the Bar. The Supreme Court is expected to decide on the proposal soon.

The justices now automatically grant hearings and issue opinions any time a lawyer contests a suspension or disbarment. Most Bar recommendations are upheld by the court, although it occasionally imposes a stricter or more lenient penalty. Uncontested matters are handled summarily through high court orders.

Under the proposal, all Bar Court rulings would become final unless the justices decided to hear an appeal from an attorney. Lesser punishments, such as public reprovals, or censures, would continue to be issued by the Bar.

Legal authorities say that the proposed reforms are long overdue--and that the justices, by approving the proposal, could save themselves considerable time and effort.

Lawyer discipline cases have taken up an increasing share of the docket of a high court already struggling under a backlog of death penalty cases and unusually rapid turnover within its ranks. Of the 105 court opinions issued in the year ending in March, a record 43 came in attorney discipline cases--compared with 28 rulings in civil cases, 19 in capital cases, and 15 in non-capital criminal cases.

“For the Supreme Court to spend more time on lawyer discipline cases than any others is just plain wrong,” State Bar President Alan I. Rothenberg said last week.

Lise A. Pearlman, an Oakland attorney who last year became the first presiding judge of the new Bar Court, agrees.

“The most significant achievement we can have is to relieve the Supreme Court of its burden of discipline cases and enable it to spend more of its valuable time on civil and criminal issues,” she said.

Two years ago, a committee of legal experts chaired by former state Supreme Court Justice Frank K. Richardson studied the high court’s growing workload and, among numerous other suggestions for streamlining court procedures, recommended transferring Bar cases to the state Court of Appeal.

The committee noted that the Supreme Court was giving “a substantial amount of judicial time” to disciplinary matters that rarely raised significant legal issues.

Some legal critics, uneasy with a system that allows a profession essentially to regulate itself, doubt the Bar Court is ready to take on broad new authority.

“My view has been that discipline cases should not be handled by the State Bar because it presents an intolerable conflict of interest--and I still feel that way,” said Philip Martin, a San Francisco lawyer specializing in cases involving attorneys. “I’m waiting to see whether the Bar Court shows its independence. It’s too early to tell right now.”

A similar view is expressed by Gert K. Hirschberg of Los Angeles, a commentator on lawyer discipline for the Los Angeles Daily Journal and former member of the State Bar Board of Governors.

“I have more faith in the state Supreme Court,” said Hirschberg. “I don’t like the idea of State Bar Court judges being under the same roof as the State Bar. It just has too many implications.”

The number of lawyers in California has nearly tripled in the past 15 years, and so has the number of complaints from the public about alleged attorney misconduct.

As criticism mounted and the backlog of formal complaints reached a record 4,000 cases, the state Legislature in 1988 created the new Bar Court, funded by higher dues for lawyers. Also, the Bar’s disciplinary investigation and enforcement staff was increased and the system’s procedures streamlined.

The nine-member court consists of six hearing judges, who publicly review charges brought by Bar investigators, and a panel of three review judges (one a non-lawyer) to hear appeals. The hearing judges are paid annual salaries of $86,157 and the review judges $94,344, the same as Municipal Court and Superior Court judges, respectively.

The court began operation in September, 1989, becoming the first disciplinary panel in the country made up of full-time professionals. According to the Bar, it is also the first deliberately chosen to reflect ethnic and gender diversity: Five judges are men and four are women, and the panels include a Latino, an Asian and a black.

Bar leaders say the new system, though in its infancy, has shown promising results. A report issued earlier this year said the number of cases remaining unresolved after investigations had dropped to 153 from more than 2,000 eight months before.

Meanwhile, in 1989, a record 89 disbarments and 221 suspensions were recommended to the Supreme Court, representing an increase of 29% and 66%, respectively, over the previous year.

University of San Diego law Prof. Robert C. Fellmeth, the state-appointed monitor of the revamped system, credits Bar officials with making “remarkable” progress--but says the new process “is not yet an ideal model.”

Fellmeth noted that the Bar receives more than 50,000 telephone calls a year from the public--ranging from simple requests for information to allegations that could lead to a Bar investigation. The rate of formal public disciplinary actions--including disbarments, suspensions, forced resignations and reprovals--now roughly doubles the rate of the early 1980s and from all indications, will continue to grow, he said.

To help the Bar Court with its workload, 13 attorneys have been appointed to serve temporarily as part-time judges. Fellmeth, and other critics, said that defeats the goals of the revamped system. He favors the addition of two full-time hearing judges to take up the slack.

“When you throw temporary judges in there, you don’t get consistency, expertise and independence,” he said. “This is not a good practice and we ought to end it (as soon as possible).”

Bar leaders note that under the proposal the Supreme Court could retain discretion to review Bar Court suspensions and disbarments. The justices thus could maintain formal control over lawyer discipline, while easing their own burdens substantially.

“A tremendous amount of the court’s workload is dealing with attorney discipline . . . and we can relieve the court of a large amount of that,” said Edward P. George of Long Beach, discipline chairman of the Bar Board of Governors.

Its backers also see the proposal as providing swifter and more consistent justice to errant attorneys.

“In the past, lawyers could stall their cases for years and years from the time they got their first notice of proceedings to the time they were disbarred by the Supreme Court,” said Bar President Rothenberg. “Now, when lawyers get in trouble, they’ll find out they can’t play games anymore.”