Legal Ethics

Déjà Vu All Over Again

Given the latest snit fit (and rightfully so) that the California Legislature has about the bar right now, it is clear that the system still isn’t working right.

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For years, I have thought that the State Bar of California has been like the gang who couldn’t shoot straight, or worse, practiced “ready, fire, aim.” The longer I am a member, aka licensee, of the bar (and this year will mark 45), the more I think that it needs to be overhauled, yet again.

The most recent overhaul happened a few years ago when the bar de-integrated, that is, divested itself of all functions except for admissions and discipline.  Given the latest snit fit (and rightfully so) that the California Legislature has about the bar right now, it is clear that the system still isn’t working right. Legislators are peeved (stronger language acceptable here) about its continuing discipline failures and Tom Girardi is Exhibit A.

Almost everyone knows something about the Tom Girardi fiasco. Anyone who watches the current season of “The Real Housewives of Beverly Hills” knows about Girardi and his wife, Erika Jayne. The California State Bar, which had fair warning for some period about Girardi’s alleged shenanigans playing fast and loose with client funds, has admitted that “mistakes were made.” Calling Captain Obvious! If you are more curious or like watching a train wreck happening before your eyes, there’s a rather good documentary on Hulu right now called “The Housewife and the Hustler.”

The Legislature has had enough of this discipline s***storm and has told the bar that it will not approve any 2022 dues funding until two things happen: (1), yet another audit of the mistakes made in the Girardi mess and the discipline system at large, and (2), the confirmation of a chief trial counsel before any funding is provided.

The bar depends on the Legislature for funding. The state Senate must confirm the bar’s selection of the chief trial counsel, who is responsible for the discipline system. That position has either been a revolving door (interim chief trial counsel in charge) or vacant for the past five years. No need to read any tea leaves here; the Legislature wants a tush in the chief trial counsel’s chair before the bar gets even one thin dime.

This is not the first time that the California State Bar has not gotten its allowance. The last time this happened, some years back, the bar asked for voluntary dues compliance. Given the antipathy that many attorneys have now and have had in the past for the bar, I don’t think compliance then was anywhere close to one hundred percent. I doubt voluntary compliance will work again, especially since attorneys had to pay for the costs of re-fingerprinting several years ago because the bar had tossed out fingerprint records.

Given that it’s near the end of July, what’s the likelihood that someone will be selected and confirmed in a timely manner for the purpose of the 2022 dues?

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An LA Times article zeros in on a California State Bar disciplinary investigator, previously mentioned in other Times stories. He is front and center in this one. Although Tom Layton may have been a low-level employee in the bar’s discipline system, he apparently was Girardi’s go-to in all sorts of ways. Girardi fancied himself a power broker, wheeler-dealer, whatever you choose to call him, and Layton arranged meetings, dinners, and the like with powerful LA people apparently willing to kiss Girardi’s ring. After reading the article, I thought I was back in Chicago when Mayor Richard J. Daley, the former boss-man, the father, not the son, wielded his formidable influence.

The bar’s discipline system has been a mess for decades. Reform started in the 1980s. Ever since then, the bar has tried to effectively and timely discipline lawyers, but a series of reforms still haven’t worked. In fact, some years back when the backlog was also large, staff declared that it had been eliminated. Wait! What? Talk about juking the stats. So, here we are yet again, trying to figure out how to satisfy the legitimate demands of a public that wants errant attorneys punished in a timely manner. Since the bar’s stated mission is public protection, it flunks.

And next week is the bar exam. How much time a day should you spend studying? There is a law of diminishing returns.

So, it’s time for my semi-annual harangue for all the test takers, whether virtually or in person. Here in California, it’s virtual, but other states will be in person, along with the Delta virus.

Regardless, please do not under any circumstances discuss your answers with anyone else, even your bestie study partner. She may be completely confident about her answers, but she may be wrong. Don’t look anything up after the exam is over, don’t perseverate about how you wrote an essay or chose a multistate answer. Once the bar exam is over, it’s over and there are no redos, unless … but let’s not even think about that. You will feel much better if you just put the whole dreadful experience out of your mind. There’s nothing you can do about it now. It’s waiting for a jury verdict, never a pleasant experience. Try to relax (always difficult for overachievers) and know that you did your best. I’m sure you did. Good luck!

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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