Towards Whom Is The Discipline System Aiming?

It is a question many attorneys brought before the Bar ask themselves (and often others in their rants about the perceived unfairness of the system).  It surely seems that most lawyers facing inquiry by the Bar are lawyers practicing in the private sector on a relatively small scale — solo practitioners and small partnership lawyers representing individuals and small business.  Now the Bar’s Annual Discipline Report does not break down the statistics on complaints or charges filed by the size of firm or discipline practiced by targeted attorneys, but several specific issues and cases have been raised in the press and within the legal community that do have to make the solo lawyer wonder if his odds of facing discipline are higher than his colleagues in the prosecutor’s office downtown, in Biglaw across the street, on the front page of the newspaper or on the Mayor’s committee for re-election.

Are Criminal Prosecutors Immune From Discipline?

The real answer is, of course, no, prosecutors are not actually immune from discipline (though they do enjoy immunity from private lawsuits for their official conduct).  The question, though, is whether they do actually in practice find themselves pretty much safe from the reach of the Bar.  The Northern California Innocence Project has been looking into prosecutorial conduct in California, and in 2010 it released its report titled Preventable Error: A Report on Prosecutorial Conduct in California.  That report and another by the Prosecutorial Oversight Coalition from March 2012 are getting fresh attention as the Texas District & County Attorneys Association released a report of its own a couple weeks ago.  As you might expect, the watchdogs are concerned that so few cases of discipline before the Bar are against prosecutors, while the prosecutors focus on the rarity of a proven wrongful conviction as evidence that the prosecutors are doing a good and ethical job. 

The Prosecutorial Oversight Coalition responded to the TDCAA’s report by stating in part that a final report will be coming after forums on this topic are held this fall — including one in California.  I look forward to this report and any information it provides specific to our state.

It surely does not appear that the California State Bar is spending many of its resources prosecuting prosecutors.  To really know whether this indicates a bias within the Bar, we would need to know whether the Bar is receiving complaints about prosecutors and simply not moving ahead with them, whether external factors are preventing people from filing complaints against prosecutors, or whether perhaps prosecutors do commit a smaller percentage of violations than private practice attorneys.

What About BigLaw, Famous and Politically Connected Attorneys?

I frequently hear the complaint from disciplined solos that the guy on the other side of the table from BigLaw isn’t typically the one sitting in Bar Court, nor is the attorney who is politically connected.  Again, the Bar does not give us a “BigLaw” or “famous” or “connected” category within its statistics on complaints and prosecutions, but there is definitely a general impression and anecdotal evidence to support this impression.

For instance, one well-known attorney is famous as much for his criminal defense work as he is for his own legal woes with respect to income tax evasion.  Though he has served prison time for wilful failure to pay taxes and has been disciplined by the Bar, most attorneys facing tax evasion charges would be disbarred without question.  Not disbarred, he is still practicing law despite his legal record and frequently shows up in the news defending notorious criminals.

And then there are the BigLaw firms and partners who engaged in questionable practices like taking stock in clients as payment for legal services.  Many of these partners are professors in our state’s top law schools, sit on the boards of major companies, represent politically-connected companies like those receiving massive bailouts, and not surprisingly have political ties of their own as well.  We don’t tend to see them up before the Bar either despite some of their actions.

So Is It Really Just the Little Guy?

For now I can’t answer this question, without more details from the Bar on who they’re receiving complaints about and who they’re filed charges against, but I do question whether this is the case.  However, even if it is true that the majority of cases are against small firm or solo practitioners, I can’t be too sure that it’s due to bias at the Bar.  Perhaps it’s due to other factors influencing the practice of these lawyers that makes them more susceptible to disciplinary problems.  And that discussion, my friends, is to come.

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