Incredibly, though, the Bar's Office of Trial Counsel (OTC) has a history of both under-prosecuting cases, such as those I cited, while at the same time over-prosecuting others. (“Why Bar Sometimes Overreaches on Discipline,” The Recorder, Sept. 30, 2011.)
So says respected legal ethicist Richard Zitrin, law professor at University of California, Hastings. (HT: Kafkaesq.) Does the message sound familiar? In the Second Installment to kanBARoo court in 2007, I wrote:
These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as over-zealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than over-zealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.
In a three-part series in The Recorder running in September and November 2011 (most unfortunately, subscription only), Zitrin explains the incompetence, insularity, and self-protective mindset that induces the State Bar to suffer disloyal attorneys while it prosecutes vulnerable nonconformists.
Zitrin’s first explanation is that the State Bar prefers the easy way. It is too incompetent to prosecute many of the more important cases (Ronald N. Gottschalk comes to mind), so it picks cases based on their probative triviality.
Prosecutions of lawyers who have seriously and serially harmed clients, while hardly daunting, can be fact-intensive. Prosecutors must prove that a manifestly unfair transaction with a client was “really” theft or embezzlement, or that apparent abandonment of the client was not something else—an uncooperative client, miscommunication or change of address. None of these proofs involves rocket science, but they do require competent trial lawyers [which, as Zitrin documented earlier, the State Bar lacks]. And they are far more difficult than technical trust-fund violations, where the rules are applied strictly and the proof is readily at hand through bank records. No wonder OTC loves prosecuting those slam-dunk violations.
Zitrin’s second explanation resembles my polemic against the State Bar’s appearance-of-impropriety doctrine. Zitrin writes:
The Bar has always been highly sensitive to how it’s perceived. Or, more accurately, how it perceives it’s being perceived. So if a judge complains about a lawyer, even if OTC doesn’t see a violation it will likely examine the case closely. If there is political pressure—or lots of publicity—then even more scrutiny is likely.
Zitrin’s third explanation corresponds to what I call bureaucratic reflex, not judging the case on its facts but on a moralistic archetype of wrongdoing.
The highly insular State Bar does not like it when lawyers act outside the box—or, more accurately, outside their box. It has long been primed to go after people it considers outliers. Too often, OTC resorts to the “catch-all” discipline provided not in the ethics rules but in the State Bar Act, originally enacted in the 1930s. Particularly appealing to prosecutors are Business & Professions Code § 6106 (“The commission of any act involving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a [crime] or not, constitutes a cause for disbarment or suspension”) and § 6068, subd. (a) (“It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.”)
Zitrin illustrates the prosecution of outliers with matters involving famous attorneys in two cases where the State Bar was reversed by the California Supreme Court: Belli v. State Bar (1974) 10 Cal.3d 824 and Jacoby v. State Bar (1977) 19 Cal.3d 359. The recent prosecution of Philip E. Kay is the current version—after the Supreme Court stopped reviewing State Bar matters.
Zitrin assesses the current state of affairs:
The State Bar has a proven track record of mediocrity in dealing with discipline. Even with the advent of the professionalized State Bar Court, OTC’s modus operandi has not appreciably changed: too many serious cases falling through the cracks; too many “easy” prosecutions resulting in harsh discipline; too many of the worst offenders still in practice.
And Zitrin offers a bleak prognosis:
Even assuming that staff can be improved and professionalized from within, changing OTC’s law firm culture will be far more daunting. There’s no reason to think that the State Bar’s insularity and opacity will change; no one I talk to within the Bar showed the slightest interest in that.
Although Zitrin’s critique shows that even some official ethicists are catching on, Zitrin’s is less thoroughgoing than kanBARoo court’s; he's dismayed by the prosecution of outliers but seems more concerned about expenses than attorney victims. Regarding one case, where a prosecutor was ordered to investigate whether a state lawyer could be disciplined for exposing the fraud of a nonclient state boss, Zitrin comments, “What a waste of time.” But intimidation, not time, is the main issue.
Zitrin is overly impressed with some prosecutors, such as Jeffrey DalCerro (head of the San Francisco Office of Trial Counsel), whom Zitrin terms “long committed to busting bad guys.” Zitrin fails to grasp that self-righteous moralism encapsulates State Bar "insularity and opacity."
Most importantly, Zitrin places excessive confidence in the California Supreme Court. He proposes abolishing capital punishment to save professional self-regulation by dramatically reducing the Supreme Court's caseload, so it can effectively supervise the Bar. A worthy proposal in itself, abolition of capital punishment, but Zitrin doesn’t understand that the Supreme Court’s special relationship to the State Bar (which functions as its administrative arm) creates a conflict of interest which incapacitates scrutiny. (Guarino v. Larsen (3rd Cir. 1993) 11 F.3d 1151, 1159 n.4 ["when a court makes a decision concerning the legality of its own actions, it may be too biased to justify abstention by the federal courts even if its actions are considered adjudicative"]; Friedman & Gaylord (1999) Rooker-Feldman, From the Ground Up, 74 Notre Dame L. Rev. 1129, 1132 ["there is sufficient basis for questioning whether a state's highest court can provide the dispassionate resolution that ought to be required when no other judicial review commonly occurs"].)