A new report from the California State Auditor has found the State Bar failed to adequately follow through on allegations of attorney misconduct, which has resulted in attorneys that should have faced disbarment to continue practicing law.
The report, The State Bar of California’s Attorney Discipline Process: Weak Policies Limit Its Ability to Protect the Public From Attorney Misconduct, was issued last month.
“We found a number of shortcomings in the State Bar’s policies regarding which allegations it investigated, who conducts those investigations, how it performs the investigations, and what it does to ensure the determinations it reaches during those investigations are appropriate,” Michael S. Tilden, acting state auditor, said in an email response to the Northern California Record.
“Generally, these issues all contributed to the State Bar prematurely dismissing allegations that it should have investigated further, allowing some attorneys to engage in continued misconduct that harmed Californians,” Tilden said.
The report cover letter to Gov. Gavin Newsom and Legislative leaders states that one attorney was the subject of 165 complaints over seven years, many of which the State Bar dismissed outright or closed after sending private letters to the attorney.
“As we indicate in the report, the Legislature passed a law, which became effective on Jan. 1, 2022, requiring the California State Auditor’s Office to conduct an audit of the State Bar’s attorney complaint and discipline process,” Tilden said. “The Legislature included this requirement in the law because the State Bar did not take action against one attorney for misconduct until recently, despite repeated allegations of this attorney’s misconduct over decades.”
The audit includes many examples of State Bar procedures that have limited how it handles attorney misconduct.
“We found that the State Bar’s weak policies resulted in it dismissing some complaints that warranted investigation—as subsequent events proved,” Tilden said. “The failure to adequately investigate allowed the attorneys to engage in continued misconduct and harm additional clients. The attorneys were not immediately disbarred because the State Bar cannot disbar them itself.”
And Tilden noted the attorneys are entitled to an investigation of the facts and it is the California State Supreme Court that ultimately disbars attorneys.
“In some of the cases we reviewed the State Bar did not sufficiently investigate the complaints to determine whether the allegations were true, and thus it never recommended disbarment to the State Supreme Court,” Tilden said.
The report cover letter also notes that attorney conflict of interest has been an issue in more than one-third of the cases reviewed by the auditor.
The audit includes a list of recommendations for attorney discipline reform, along with the State Bar’s response on its efforts so far.
“As we indicate in the report, some of the recommendations have already been implemented,” Tilden said. “We are continuing to monitor the State Bar’s implementation of the remaining recommendations. Auditees must provide the State Auditor with information regarding their progress in implementing recommendations from our reports at three intervals from the release of the report: 60 days, six months, and one year.
“Additionally, Senate Bill 1452 (Chapter 452, Statutes of 2006), requires auditees who have not implemented recommendations after one year, to report to us and to the Legislature why they have not implemented them or to state when they intend to implement them. You can track the status of the implementation of all of our recommendations from this report here.”