State Bar whitewash

On June 10, the California State Bar took the unusual step of issuing a news release admitting that it made mistakes in investigations of Thomas Girardi during his 40-year career. A special audit detected the mistakes. Bar spokesperson Teresa Ruano told the Los Angeles Times the auditor was Alyse Lazar. Ruano said the bar would not release any details of the audit because it was attorney client privileged. The onslaught of publicity drove the State Bar to admit error. The turn of phrase the State Bar used was "in light of public interest." A close look at the release shows that the State Bar has little use for light on its grave mistakes.

The release stated that the audit found mistakes "in some investigations over the many decades of Girardi's career going back over some 40 years and spanning the tenure of many Chief Trial Counsels." Not one mistake was identified, nor was one responsible chief trial counsel named. The gist of this portion of the release is that it was too hard and too complex over too long to identify any one serious failure by the State Bar. The release preferred obscurity over specificity.

The State Bar's penchant for hiding behind attorney-client privilege and obscurity might lead one to conclude that all the problems had to do with confidential victims. But that is not correct. The 9th U.S. Circuit Court of Appeal's 2013 condemnation of Girardi's lies about a half billion-dollar judgment was public. See "Did the State Bar fail professional responsibility in Girardi case?" Daily Journal (May 24, 2021). The transfer of the record of that case to the State Bar was public. Its failure to take any public action was, of course, public. The name of the chief trial counsel at that time is public.

When asked about whether the audit included the State Bar review of Girardi's practices in the half billion-dollar case, bar spokesperson Ruano, had no comment. Similarly, there was no comment about whether the State Bar would ever admit the mistakes made in that matter. This brings to mind what Mayor Richard J. Daley said when asked about police officers' beatings of protestors at the 1968 Democratic Convention in Chicago: "the police are here to preserve disorder." The State Bar prefers that the public and its members have no clear information about its failures in relation to Girardi.

The State Bar is charged with protecting the public. It failed to protect the public against Girardi. But now it is going a step further. It is hiding those responsible for serious errors. If the State Bar thinks that is just a professional accommodation, it is sadly mistaken. It is sending a message to its current leadership that, no matter how grave your errors, the bar will protect you. That achieves the opposite of protecting the public, it lets leaders act without accountability. This exposes the public to more harm. If the State Bar believes the problem was mainly Girardi, it is missing a big part of it. If the State Bar believes the problem is in the distant past, it is missing a big part of it.

The chief trial counsel of the State Bar is a public office. But, under the audit, its significant mistakes remain private. On the other hand, thanks to media coverage and the Hulu documentary about Girardi, "The Housewife and the Hustler," we know the names and faces and can see the scars of some of Girardi's client victims. The contrast between the public faces of the victims and the hidden failures of the State Bar illuminates that the State Bar is mired in a twentieth century approach to enforcement agency responsibility. It needs a model of how it should act regarding its mistakes. It is instructive to look at how another institution recently handled its serious mistakes.

The Thacher School is an elite private coeducational boarding school in Ojai. It received reports of sexual misconduct. It hired a law firm to write a full investigation for its board of trustees. Once the investigation was written, the Thacher School published it. The investigation covered many claims of misconduct. While preserving the anonymity of the affected students, it published the names of adult faculty and staff involved in the misconduct or cover up. The report described specific instances of misconduct by specific adults. The report was made to disclose, not hide, and to strengthen Thacher and its community. This report is the polar opposite of what the State Bar has done with respect to Girardi.

The Thacher School published the report even though the report could expose it to liability. The State Bar has far less liability exposure.

Skeptics will say that the State Bar will never identify specific serious errors as to Girardi, let alone those responsible. But that may not be correct. The lead author of the Thacher report was Hailyn Chen of Munger, Tolles & Olson LLP. Chen is a trustee to the State Bar. Chen's fiduciary duty to her client the Thacher School may have led her to advise it that the best approach was to identify specific serious errors and take responsibility. As a trustee she has a fiduciary duty to the State Bar as well. We can hope that she will lead the State Bar out of the shadow in which it hides its profound errors in handling Girardi. 