Auditor criticizes Bar’s discipline system but says exam was successful

The California State Auditor is not impressed with the State Bar's recent changes to the lawyer discipline system, according to a report released Thursday.

The report is a requirement under the business and professions code. In a public letter, State Auditor Elaine M. Howle said the bar has failed to improve the efficiency of the system after changes made in 2016.

The bar converted its discipline staff from specialists to generalists and promoted senior attorneys to full-time supervisors. The agency also implemented a new case management system, the Odyssey program, resulting in calendars and dockets remaining offline for months, which the Daily Journal reported in 2019.

"However, from 2015 through 2020, case processing times for the investigative phase of attorney discipline cases increased by 56 percent, and the backlog of cases increased by 87 percent," Howle wrote in the letter. "These delays allow attorneys under investigation to continue practicing law while their cases are pending, increasing the potential for harm to the public."

"Moreover, the State Bar has not effectively monitored the impact of its reorganization because it does not adequately measure the performance of its discipline system staff," Howle continued.

The audit, which coincided with the 2020 annual discipline report release, found that last year's report did not release all the required information required under state law. The bar skipped including certain cases in its metric.

According to this year's discipline report, the bar opened nearly 17,500 cases and reduced the backlog of the highest priority cases by 17%.

For Kendra L. Basner, partner at O'Reilly & Roche LLP representing lawyers in disciplinary matters, the audit results do not come as a surprise. Basner said she usually has to wait for months before getting a response from the bar concerning attorney investigations, although wait times appear to have decreased during the pandemic.

"At the moment, I consider myself lucky to have only one investigatory matter that is in its fourth month of not hearing anything from the bar," Basner said. She pointed out that some of her colleagues have had cases open since last spring and summer, and some since 2018.

"In my experience, the matters that take longer don't seem to be any more complex than the others," Basner continued. "It really just seems like it's a matter of luck as to which bar investigator or staff attorney is assigned to the complaint, how organized he or she is, and how much backlog there is on his or her desk."

Howle suggested that the current oversight of the discipline reports is inadequate.

April 30 is the deadline for the agency to submit the report, something the Legislature should consider changing to give itself more time to review the report before setting the annual license fee, Howle recommended.

The audit also touched on the online bar exam, saying that the bar was successful in handling it. The bar created a temporary supervised licensure program, has administered two exams remotely, and lowered the bar exam passing score at the direction of the state Supreme Court.

However, Howle was critical of how the agency picked the vendor, ExamSoft, to administer the online exam, saying the bar's contract manager ignored requirements to ensure that the vendor provided the best value.

"Instead, the manager entered into a contract and a contract amendment worth nearly $4 million related to bar exams without providing evidence that these agreements represented the best value," the audit said.

In the formal response to the audit, Donna S. Hershkowitz, the bar's interim executive director, said the agency is in general agreement with the recommendations and plans to implement most of them but strongly disagrees with some.

"Most importantly, the State Bar agrees with the auditor that reform of the statutory metric used to assess how effectively the State Bar protects the public through the attorney discipline system is in order," Hershkowitz said. "We look forward to working with the Legislature on this important goal."

The bar already has initiatives underway. A new commission will explore changes to the discipline system. The state Supreme Court also recently announced the members of a Blue Ribbon Commission on the Future of the Bar Exam, a joint effort between the court and the bar.