Report 2022-030 Recommendation 4 Responses

Report 2022-030: The State Bar of California's Attorney Discipline Process: Weak Policies Limit Its Ability to Protect the Public From Attorney Misconduct (Release Date: April 2022)

Recommendation #4 To: Bar of California, State

To ensure that it fulfills its duties to investigate attorney misconduct, by April 2023, the State Bar should begin monitoring compliance with its new policy for identifying the circumstances in which investigators should continue to investigate even if the complainant withdraws the complaint.

1-Year Agency Response

In March 2023, OCTC conducted a random audit of files closed using the new closing codes "NSF-CW- Resolution," "NSF-CW-Uncooperative," and "NSF-CW-Withdrawal" to check whether these three codes were being used following OCTC's new policy for identifying circumstances in which investigators should continue to investigate even if the complainant withdraws the response. The Mission Advancement & Accountability Division (MAAD) provided OCTC with a random sample of 30 cases closed between February 2022 and March 2023 for each code. OCTC staff reviewed the substance of the file in each case, including the complaint and closing letter(s), to determine: (a) was the proper closing code used; (b) was it appropriate to close the case based on the CW withdrawing their complaint or otherwise being non-cooperative (whether because of a resolution with R or for any other reason) because without the CW's cooperation OCTC would not be able to develop facts sufficient to prove a disciplinary violation by clear and convincing evidence; and (c) did the closing letter(s) accurately and sufficiently explain the reasons for closing. The results of this random audit indicated the following: (a) the correct closing code was used in at least 90% of the cases for each of the three closing codes; (b) closure was appropriate in at least 90% of the cases for each of the three closing codes; and (c) closing letters accurately and sufficiently explained the reasons for closing in at least 93% of the cases for each of the three closing codes. While reviewing the closing letters, it was noted that six failed to include information advising the complainant of the ability to seek review from the Complaint Review Unit. Given this, and the results of the closing code audit, OCTC will conduct training that will cover the situations in which each of the three closing codes should be used and emphasize the need for closing letters to be complete and include information regarding available review.

California State Auditor's Assessment of 1-Year Status: Pending

We disagree with the State Bar that its actions have fully implemented our recommendation. We recommended that it monitor whether its investigators are following its policy for continuing to investigate cases even if the complainant withdraws the complaint. Although the State Bar selected a relatively small number of cases for review, that review indicates that as much as 10 percent of cases were inappropriately closed. For this reason, we continue to recommend that the State Bar perform ongoing monitoring to ensure that it is fulfilling its responsibility to investigate attorney misconduct and is not prematurely closing cases that should be investigated.

6-Month Agency Response

OCTC's new policy and the modified closing codes remain in place. The State Bar's new Office of Compliance will collaborate with OCTC staff to develop a periodic compliance monitoring program based on the new OCTC policy. Compliance monitoring shall be facilitated through the use of a new Compliance Monitoring Template to be developed. Monitoring will involve random sampling of closed cases during the prior six months to include verification of closing reasons and relevant codes. Using this approach, we will ensure that cases marked "closed" were based on the sufficiency of the evidence and not the complainant's withdrawal of the matter or their failure to cooperate in the investigation.

California State Auditor's Assessment of 6-Month Status: Pending

60-Day Agency Response

OCTC's case management system requires, at case closure, the entry of a code for which a reason for closure must be selected from a drop-down menu. The reasons for closure were modified to accord with the new policy to make clear that a complainant's withdrawal of or failure to cooperate in the investigation of their complaint was not alone a sufficient basis for closure. For example, the case management system previously included the following reasons for closure: "Matter Resolved Between CW," "CW's Failure to Cooperate," and "Withdrawal." These three reasons for closure were modified to make clear that closure requires an evaluation of the sufficiency of the evidence and now read as follows (with "NSF" an abbreviation for insufficient evidence): "NSF-CW Resolution," "NSF-CW Uncooperative," "NSF-CW Withdrawal." Similar modifications have been made to other relevant closing reasons. OCTC will develop a system to monitor compliance with the new policy by conducting a randomized review of cases using the new closing reasons to ensure that closure is in fact based on the sufficiency of the evidence and not alone on the complainant's withdrawal of or failure to cooperate in the investigation.

California State Auditor's Assessment of 60-Day Status: Pending

The State Bar's response does not address the underlying issue this recommendation is intended to address. Altering closing codes to state that there is insufficient evidence to pursue a case does not address our concern that the State Bar's case closure determinations are based on the complainant withdrawing from the process, not the sufficiency of evidence. We reviewed closed cases in which the State Bar had evidence where it could have pursued discipline for misconduct without the cooperation of the complainant. This recommendation is intended to ensure that the State Bar monitors the actions of its staff to prevent such cases from being closed prematurely.

All Recommendations in 2022-030

Agency responses received are posted verbatim.