The State Bar of California Disciplinary Process deserves a test: does it drop more lawyers and solos from smaller law firms than lawyers from larger law firms? Does it hit minority lawyers more than majority lawyers? The answer to both questions is yes, and I’m not the only one thinking that. It is well and good for the prosecution to encourage people to become attorneys, but dropping them after passing the law office doesn’t help as the discipline can range from personal reprimand to being banned.
One of the things (among many) that attorneys here in California (and I would suspect elsewhere) have gotten a grip on is the apparent preference of the disciplinary system for soliciting individual and minor practitioners and attorneys in Biglaw and other large firms leave it alone if they violate the State Bar Act or professional code of conduct. Solos and attorneys in small firms are as good as on their own once they are in the discipline. There is a feeling that these lawyers, who may also be members of minority groups, are being wrongly disciplined. This perception and reality must change if equality is to be more than just words.
In an effort to show that the prosecution really cares about racial equality, that it is not just about words and gold stars on a testimonial, the identification of “disproportionate discipline” has led the Board of Trustees to “staff to develop and Move Implementation ”and evaluate several reforms addressing findings relating to the disproportionate discipline imposed on black male lawyers in particular. “
After a case turns through the judicial and review bodies of the State Bar Court, the California Supreme Court has the final say on disciplinary matters. The Harper on Discipline case is currently pending, in which the court has approved Harper’s motion for a review of the discipline imposed. The discipline arose from a reported overdraft on Harper’s customer trust account.
The Court referred the case back to the State Bar Hearing Department for “further evidence hearings to determine whether the neutral disciplinary practices of the State Bar in question, including, but not limited to, the weight attached to the petitioner’s prior discipline on reportable banking matters that had the effect of discriminating against Harper because of his race. “
The court’s order also requires the “prosecution to determine whether Harper has been disciplined more severely than any other similarly situated white male lawyer.” Harper will get all the data in two studies recently commissioned by the prosecutor.
One of them is the Farkas Study, conducted by Professor George Farkas of the University of California at Irvine, which looked at racial differences in the legal discipline. The Farkas study found significant differences between the disciplinary rates of black and white male lawyers. The study also showed that solitary practitioners were more likely to be disciplined than lawyers in larger corporations. That does not surprise me; are you?
After the prosecutor’s trustees reviewed the Farkas report, they hired Professor Christopher Robertson of Boston University to evaluate the Farkas report and make recommendations, which he did. Among the recommendations: Archive five years of previous complaints. Given the disproportionate number of complaints against black male lawyers, the question arises as to whether “priors” influence the decision on filing charges. Another recommendation: create a support system to help lawyers at higher risk of future complaints. This system could include both intervention and contact programs. No lawyer welcomes an encounter with the disciplinary system.
The prosecution has set up an ad hoc committee on legal discipline. The commission, whose members were recently announced, is made up of different lawyers with different practices and represents different groups. It will be responsible for reviewing changes already made in the disciplinary system and, if necessary, proposing further changes for public protection.
However, the public prosecutor’s office has resumed the application process for the selection of members of the Commission in order to “seek representation in the Commission of groups most disproportionately affected by the disciplinary system”. As stated on the prosecutor’s website, “the aim of the commission will be to thoroughly examine legal discipline and work to create a fairer and more effective system for lawyers and the public alike.” I was not surprised by the reopening of the motion because when I looked at the current members of the commission I found that minority representation was inadequate.
Two events are currently running in parallel: the Ad Hoc Legal Discipline Commission and the State Bar Court’s pre-trial detention to hold evidence hearings on whether Harper’s discipline was racial discrimination.
Given the time the agencies have to answer these questions, no one can imagine when either or both will be completed, what the results will show, what steps the prosecution will take, if any, and what the Supreme Court will decide on Harper’s discipline.
Meanwhile, several public-interest law firms have filed lawsuits against the Los Angeles Supreme Court over issues arising from the pandemic and how the court is or isn’t administering it. Two court interpreters at the Stanley Mosk courthouse in downtown Los Angeles have died of COVID-19. The court does not require temperature controls to enter courthouse, does not monitor how many people can enter an elevator at the same time, does not ensure that masking is required, but proceeds with evictions and traffic matters.
To be fair, there isn’t a playbook on managing courts during a pandemic, but there will be plenty of autopsies on what courts should and could have done differently. I hope that lessons are learned during this time of limited or no access to justice.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a friendlier time. She had a varied legal career, including as a deputy public prosecutor, as a solo practice and as leading in-house gigs. She now teaches all day what gives her the opportunity to see dinosaurs, millennials, and the people in between – it’s not always bourgeois. You can reach them by email at [email protected].