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Attorney Privilege 

The state bar is supposed to punish dishonest attorneys. Instead, it too often coddles them

Wednesday, Jul 18 2007
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Sekhon and Duggan did not respond to interview requests. But their respective cases raise questions about why attorney malfeasance that might appear to warrant long suspensions or outright disbarment — at least in the view of victimized clients, if not most non-lawyers — instead draws milder sanctions.

Legal observers fault an inbred discipline system.

"That's what happens when attorneys are policing other attorneys," says Suzanne Blonder, senior counsel for HALT, a nonprofit legal reform advocacy group in Washington, D.C. "You end up with a system that forgets about clients."

California ranks as one of only six states in which non-lawyers play no role in the discipline process from the adjudication side. In most states, bar panels that review discipline decisions have at least one public member to give voice to client concerns. In California, the duty falls to judges. "If a jury of laypeople can decide a death penalty case or a multimillion-dollar civil case," Blonder says, "they're certainly able to decide about whether attorney misconduct occurred."

Last year, in its nationwide survey of lawyer discipline, HALT rated California's system fifth worst. (Utah claimed the bottom spot; Connecticut ranked first.) The study knocked the state bar for the sluggish pace of its prosecutions and for imposing inadequate penalties.

Headquartered in San Francisco, the State Bar of California, in its role as the state Supreme Court's administrative arm, acts as the sieve for complaints against lawyers. Allegations flow through the Office of the Chief Trial Counsel, where complaint analysts assess whether a grievance merits deeper investigation, a review generally completed within 60 days.

A complaint advances if facts suggest an attorney breached the bar's Rules of Professional Conduct or the state's Business and Professions Code. An agency investigator then probes whether violations occurred, an inquiry that tends to run six to 12 months, depending on a case's complexity. Those findings pass to a bar prosecutor, who decides whether to bring charges in State Bar Court, the adjunct of the state Supreme Court that deals with attorney discipline cases.

A case sits on the Bar Court's docket for an average of six months, and if it later goes to the court's review panel, another two to three months may pass before the Supreme Court receives it. (The Supreme Court adopts the Bar Court's decision as the final judgment, with rare exceptions.)

In 2006, out of 14,230 complaints filed with the bar, more than 11,000 were closed after the initial evaluation, primarily owing to what analysts judged as a lack of validity or evidence. Bar officials say the lion's share of grievances — chief among them, clients grousing that their lawyer lost a case — fall shy of ethics and business code violations.

The 3,200 cases forwarded to investigators included some left over from late 2005; nearly two-thirds wound up dismissed. Another 400 ended upon an attorney's death, or a lawyer's resignation or disbarment in a preexisting discipline matter. Almost 300 cases culminated with warning letters and written agreements in lieu of discipline.

By year's end, prosecutors had brought charges against 505 lawyers, most often alleging dereliction of cases or mishandling of client funds. That's less than 4 percent of the total number of complaints filed with the bar last year.

"There's no question that the bar's discipline system is just skimming the surface of bad lawyer conduct," says San Francisco attorney Richard Zitrin, an expert on legal ethics. "Too many lawyers get away with bad behavior." Zitrin has written his share of letters on behalf of attorneys facing penalties, attesting to their good character. Nonetheless, he says, "Lawyers who get disciplined by the state bar deserve the discipline — and deserve harsher consequences."

The State Bar Court decided 417 disciplinary cases in 2006, disbarring 71 lawyers and suspending 250. Judges slapped 96 lawyers with public or private reprovals — essentially, written admonishments. In addition, 84 lawyers resigned with charges pending.

The Bar Court weighs mitigating factors before imposing sanctions, ranging from an attorney's discipline record and mental health to how much time has passed since the misconduct. Such considerations can produce rulings that read like misprints.

During a monthlong stretch in 1999, attorney Julie Wolff dumped 39 cases referred to her through an indigent litigant program in Sacramento County, deserting 300 clients. Yet in 2004, a Bar Court judge let her off with a public reproval, citing Wolff's clean discipline history and the four-year gap between her file purge and the Bar's investigation. Last December, the Bar Court's appellate review panel applied a degree of corrective logic, hitting Wolff with an 18-month suspension.

The state bar's annual reports on lawyer discipline omit details on the average length of suspensions approved by the court. But an SF Weekly review of cases since 2004 involving Bay Area attorneys indicates that most run six months or less. McCasey's lasted 60 days, ending in February.

The Bar Court's discipline order states that McCasey suffered from unspecified "extreme emotional difficulties or physical disabilities" at the time of her offenses.

A frustrated Weakland meted out his own justice: He placed copies of the court's ruling in the mailboxes of her neighbors in Alamo. "If the bar wasn't going to give her what she deserved," Weakland says, "I figured I could try to embarrass her a little bit."

Disciplinary action taken against California attorneys enters the public record unless a lawyer agrees to a private reproval before the bar files charges. (The agency posts the discipline history of its members at www.calbar.ca.gov.) But unlike in Oregon and West Virginia, where every written grievance against an attorney is disclosed, complaints against California lawyers stay under wraps if dismissed by the bar.

About The Author

Martin Kuz

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