Despite Girardi debacle, State Bar continues to ignore consumer protection

Even as the State Bar of California acknowledges mistakes regarding its stunning failure of regulatory oversight in the matter of Thomas V. Girardi, it nonetheless continues to pursue plans to implement a major restructuring of the delivery of legal services in California. These truly radical proposals would authorize nonlawyers to own all or part of a law firm and to share fees with lawyers, and also include a scheme for licensing independent paralegals to offer legal services without lawyer supervision. But the evidence that such changes will have any positive effect is lacking.

It is ironic that the State Bar should be promoting such changes, claiming without evidence that this will benefit consumers, when it has so egregiously failed in its primary mission of protecting consumers. The State Bar's board of trustees appear to have been captured by special interests with no real dedication to consumer protection.

The State Bar website states: "Discipline The State Bar of California's highest priority is protection of the public. The State Bar licenses, regulates, and disciplines the 260,000 attorneys in California." (Emphasis added.)

In reality, the agency has turned its back on this mission. A March 7, 2020, article in the Los Angeles Times, "Lawyer Seduced State Bar," disclosed a long-continued and thoroughgoing failure of the State Bar's disciplinary machinery to protect consumers from Girardi, but the agency appears not to have noticed how much it has lost its way. The article asserts that, from the 1980s until 2020, Girardi was sued over 100 times, with at least half of the cases alleging misconduct in his law practice. The Times story also detailed how Girardi and co-counsel Walter Lack, who represented Nicaraguan agricultural workers in a suit in the early 2000s, engaged in a failed attempt to mislead a federal court about their failure to name the correct defendant. Following the exposure of their fraud on the court, a federal judge fined Girardi $125,000; and Lack received a $250,000 fine and a six-month suspension from practice in federal court. Recounting these events, Attorney Antonio R. Sarabia II commented in a May 24 column in the Daily Journal: "More than 10 years ago, the State Bar was warned about Girardi and failed to take public disciplinary steps. ... Girardi did not even receive a public reprimand after he signed false briefs, tried to enforce a half billion-dollar judgment against companies that were not parties to the underlying litigation, and then appealed the loss."

The State Bar continues forward on a process which has been going on for over two years. The California Paraprofessional Program Working Group created by the board of trustees is drafting rules to govern "independent" paralegals, including setting educational requirements, prohibiting various behaviors forbidden to lawyers, and establishing penalties for rule violations. Yet, as the Girardi case richly demonstrates, having good rules and enforcing them are entirely different matters. What stronger evidence must be adduced to overcome the myopia of the State Bar?

For years it has proven difficult to find adequate resources to address the behavior of substantial numbers of persons who wish to make money practicing law when they are not authorized or sufficiently trained to do so. Taxpayers are unwilling to support heavy expenditures for law enforcement against nonviolent, serious crime when the state is facing a rising violent crime rate, a thriving illegal drug trade, and increasing lawlessness across the board.

Some seem to think that licensing independent paralegals is an answer to the problems outlined in the State Bar's reports on access to legal services, including the November 2019 report, The California Justice Gap, the 2019 California Justice Gap Study, dated September 2019, and the 2019 California Justice Gap Study, Executive Report. Yet these reports, which concern consumer access to legal services and the justice gap (a shortfall in the delivery of legal services), do not identify the licensing of independent paralegals as a solution to the problem.

Lack of sufficient resources is not the only reason why rules are not enforced. In some cases, the cause is corruption. Considering the gravity and extent of the misconduct attributed to Girardi, which went on for decades and involved thousands of victims and tens of millions of dollars, it is reasonable to suspect that a fox or foxes subverted key elements of the disciplinary apparatus within the State Bar henhouse. The Times article implies, with a wealth of circumstantial evidence, that one or more of the State Bar's employees was also working for Girardi. One of the co-authors of the article, Matt Hamilton, commented: "When you're so involved in the [State] Bar, the Bar is conflicted from investigating you. ... That's one way Girardi was able to avoid scrutiny of the agency."

Particularly worrisome is the implication in the Times article that the judiciary may also have failed in its role of remaining independent and not influenced by attorneys. The article noted multiple instances of bench officers enjoying lavish hospitality from Girardi and his confreres.

The State Bar is an administrative unit of the California Supreme Court. Given the gravity of the Girardi matter and the possible role of State Bar personnel in sheltering Girardi from discipline, there is an urgent need for an independent, outside investigation. The Supreme Court should initiate a thorough inquiry into the causes of the Bar's lapses and adopt measures to restore it to its primary mission and to the respect of the public. Maintaining public confidence in the Supreme Court, the courts of general jurisdiction, and officers of the court is of paramount importance.. 