Is the Bar Prosecutor Alleging Murder When Only Manslaughter Is Appropriate?
“The state bar is overcharging its cases.” Thus started the commentary by Carol M Langford, in the newspaper, The Recorder, in San Francisco. Langford is a defense counsel and former chair of the State Bar’s Law Practice Management and Technology Section. She quotes the California Supreme Court to the effect that “bar matters are ‘quasi criminal’ in nature.” She asserts that respondents before the State Bar Court have none of the usual constitutional safeguards in a normal criminal proceeding.
She further asserts that the Chief Trial Counsel (Jayne Kim) commented that the bar had to be “tougher” as evidenced by the Supreme Court’s rejection of 24 stipulations in 2012. Ms. Kim responded to Langford’s August 28th Viewpoint column, claiming she was misquoted.
This sounds a bit like the classic prosecutor/defense counsel “difference” of opinion. Ms. Langford would obviously prefer more stipulations that favor respondent attorneys; Ms. Kim would obviously prefer that those attorneys being “charged” be locked in jail and the key thrown away. The bottom line is that the general fund of the State Bar of California is $64 million, 75 to 80% of which goes to fund the bar’s disciplinary system. That is a whopping $48 million, give or take, that is expended to discipline attorneys who allegedly violate the rules of professional conduct.
I have watched this scenario for more than 40 years. In that time, there is only one State Bar president who indicated that the goal of the State Bar was twofold, one to protect the public and two to educate lawyers in more effectively running their law practice. By doing the latter, we do achieve the former as well. But for Jim Heiting, the president who suggested this, the State Bar is now in an adversarial position with its members, lawyers.
Langford suggests that the State Bar should make “real offers to respondents to settle matters…” A lawyer signs a stipulation still receives punishment. In none of the comments made by Langford did she suggest that the respondent lawyer not receive discipline. The focus is whether there be a stipulation without a trial (and the concomitant additional cost to both the State Bar and to the respondent) or whether all matters need to go to trial. Why does the State Bar trial department not focus its energies against lawyers who turned down good offers reflective of the misconduct at issue.
This is a good question and one that is not answered merely by suggesting that the current legislation in California mandates that the public be protected. “Cleaning out a backlog” by offering reasonable stipulations, educating lawyers (members of the bar) on client relations and economics of the practice of law and developing a mutually respectful relationship between the Bar and its members will go a long way toward reducing the cost of attorney discipline and (Heaven help us) reducing the cost of membership in the State Bar.