“What else could go wrong?” The answer has always been “Don’t ask.” That may be the dialogue that the State Bar of California is having these days. Just when it couldn’t seem to get any worse, it has. On two fronts.

The first is the scathing audit report that the California State Auditor has released about California State Bar shortcomings in its managing/handling/administering, whatever you want to call it, of the lawyer discipline system. Sad to say, those shortcomings are not new. In fact, for years, the bar has struggled with its discipline system, never seeming to make much headway in its case backlog. Although California law mandates that the highest obligation of the state bar is public protection (Business and Professions Code section 6001.1), that obligation seems to be still more an aspiration than a reality.

The headline of the auditor’s fact sheet about her findings says it succinctly: “The State Bar is not effectively managing its system for investigating and disciplining attorneys who abuse the public trust.” Exhibit A is the bar’s handling of the Tom Girardi mess, which validates that conclusion.

So, in 2016, hoping for a new beginning after years of complaints about the discipline process from the Legislature and others, the bar made changes to the disciplinary system, but alas, in the auditor’s opinion, they were insufficient as they didn’t comply completely with the relevant regulatory statutory requirements.

The numbers provided by the auditor are not pretty. Case processing times have increased by 56%. The backlog of cases yet to be processed rose to 87% (!). As the auditor noted, attorneys under investigation can continue to practice. Again, the Tom Girardi case is Exhibit A.

More numbers: the number of cases in which discipline was imposed dropped by 54% and the bar has not, at least in the auditor’s opinion, explained why. The rate of discipline is substantially lower than one would think the bar would be happy with.

The report says that there’s no benchmarking of discipline staff, so there’s no ability to figure out what accounts for the increase in backlog and reduction in disciplined attorneys. This is not the kind of situation where the “dog ate my homework” excuse is going to get the bar any props.

According to the auditor, the California State Bar did not include some necessary data that the Legislature needs to review before setting the annual dues the bar can charge its licensees. “The State Bar does not fully and consistently present required information in its discipline report, limiting the ability of stakeholders to evaluate its administration of its discipline system. The deadline established in state law for submitting the annual discipline report limits the amount of time the Legislature has to assess the State Bar’s performance before deliberating on the annual fee bill.”  Oopsie.

This audit is not going to make the Legislature happy, and it has not been happy with the bar for years. The chair of the state’s Senate Judiciary Committee (which oversees the annual dues bill arm-wrestle as the state bar has no authority to set its own dues) has introduced legislation that would prohibit any consideration of the 2022 dues bill until after confirmation of the new chief trial counsel.

The chief trial counsel can only serve one year without being confirmed by the state Senate. It’s one and done. Right now, the position is vacant, and the search closed last month.

So, the chair is essentially saying full stop on any consideration of the 2022 dues bill right now. Does the term FUBAR come to mind? How quickly can the state bar appoint a new trial counsel who will be able to be confirmed by the state Senate before the annual dues bills are emailed out in early December? Wouldn’t the candidate the state bar selects want to do some due diligence before taking on what I see as a “heads you lose, tails you lose” job?

The second issue the auditor noted was the problem with the bar exam vendor. Granted, 2020 was a year like no other. The auditor chastised the bar for entering into multimillion-dollar contracts with the bar exam vendor without adequate justification for that selection. “The State Bar did not follow its contracting policy when it entered into software agreements worth nearly $4 million related to the bar exam. As a result, it did not verify that it was using its resources responsibly.” Another oopsie.

How has the bar responded to the audit? It agrees that there is a need for reform of the metrics the state bar uses to measure how it performs its obligation of public protection. It also agrees with the auditor that a look at how the office of chief trial counsel performs its job is a good idea but pushes back against the claim that the 2016 reorganization of the office was ineffective.

The bar noted it has “refined its thinking on the statutory backlog measure over the years and has recently formulated principles for creating case-processing goals and measuring the State Bar’s effectiveness in protecting the public.” Is this too little too late?

However much lipstick the bar puts on this pig, it’s not enough, especially when you can’t see lipstick on a masked pig. It’s ironic that the California State Bar, which is supposed to oversee how lawyers keep their professional houses in order, can’t seem to do the same with its own.

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 oldladylawyer@gmail.com.