(Image
via
Getty)
I
had
resolved
for
2023
that
I
would
spend
less
time
nattering
about
the
various
trials
and
tribulations
of
the
State
Bar
of
California.
A
good
resolution
in
theory,
but
it’s
just
not
going
to
work,
especially
after
the
latest
headline
story
in
the
Los
Angeles
Times
about
how
the
discipline
system
in
this
state
is
a
joke.
And
it
is.
The
headline
makes
it
clear
that
the
discipline
system
goes
after
minority
attorneys,
especially
Black
lawyers.
That’s
not
news
for
us
lawyers,
but
it
is
for
the
public.
And
some
of
the
charges
are
technicalities,
not
major
violations
such
as
stealing
client
funds.
In
the
almost
30
years
between
1990
and
2018,
a
study
released
by
the
bar
three
years
ago
showed
that
Black
male
lawyers
were
nearly
four
times
likelier
to
be
either
disbarred
or
resign
with
charges
pending.
Black
male
lawyers
were
placed
on
probation
more
than
three
times
more
often
than
whites.
You
do
the
math.
It’s
an
open
secret
that
the
discipline
system
goes
after
easy
pickings,
the
lawyers
who
don’t
have
name
recognition,
publicists,
and
juice
(not
the
breakfast
kind).
The
discipline
system
prosecutes
cases
that
don’t
require
a
lot
of
work
up,
a
lot
of
investigation,
a
lot
of
time,
and
the
corollary,
a
lot
of
money.
The
Legislature
seems
to
be
unwilling
to
shake
loose
additional
funds
for
that.
Since
discipline
matters
are
funded
by
attorney
fees,
there
is
a
finite
amount
of
money
available
for
discipline,
and
it
shows.
That’s
one
reason,
and
there
are
others,
why
Tom
Girardi
was
able
to
skate
for
decades,
avoiding
discipline
while
stealing
client
funds
and
living
the
high
life
as
the
husband
of
a
real
housewife
of
Beverly
Hills.
Another
issue
that
the
LA
Times
article
pointed
out,
and
this
again,
is
no
secret
in
the
legal
community
here,
is
that
the
discipline
system
comes
down
harder
on
the
solos
and
small
firm
practitioners
than
it
does
on
Biglaw.
Solos
and
small
firms
don’t
necessarily
have
all
the
support
staff
and
resources
to
make
sure
all
the
“i’s”
are
dotted
and
the
“t’s”
crossed.
That’s
not
to
excuse
major
faux
pas
like
embezzlement,
but
there
should
be
ways
to
help
lawyers
become
better
at
the
nonlegal
parts
of
the
business.
Years
ago,
the
bar
required
several
hours
of
law
office
management
for
CLE
compliance.
Not
any
more.
Time
to
reinstitute?
The
goal
should
be
to
have
lawyers
succeed,
not
fail,
but
the
result
is
that
solos
and
small
firm
lawyers
get
the
shiv,
while
big
firm
lawyers,
well-connected
lawyers,
get
a
pass.
The
discipline
backlog
of
thousands
of
cases
has
always
been
an
issue.
In
2012,
the
bar
announced
that
the
backlog
had
been
cleared.
Say
what?
Miraculous?
A
few
short
years
later,
the
backlog
returned
with
a
vengeance.
Trying
to
tame
the
backlog
is
wrestling
with
alligators.
Lawyers
in
career
jeopardy
is
not
new,
but
can
you
provide
the
question
to
this
final
jeopardy
answer,
which
is
“California”?
The
final
jeopardy
question:
What
is
the
only
state
bar
that
does
not
either
require
or
encourage
lawyers
to
turn
in
their
peers
for
wrongdoing/misconduct?
California
lawyers
have
resisted
such
a
rule
since
the
1980s
when
it
first
became
used
in
other
states.
Is
it
a
“snitch”
rule
that
allows
attorneys
to
obtain
an
unfair
example
when
opposing
counsel
does
something
that
the
complaining
attorney
does
not
like?
Can
it
be
used
as
a
cudgel
to
force
cooperation
or
face
discipline?
How
does
that
square
with
the
rule
that
attorneys
should
not
seek
an
unfair
advantage
in
litigation?
The
attorney
chair
of
the
California
Senate
Judiciary
Committee,
Tom
Umberg,
has
introduced
legislation
to
bring
California
in
line
with
the
forty-nine
other
states
that
have
such
a
rule.
This
would
be
more
than
just
an
ethical
rule;
it
would
be
an
addition
to
the
State
Bar
Rules
of
Professional
Conduct,
e.g.,
Business
and
Professions
Code
section
6068.
The
Girardi
mess
prompted
Umberg’s
introduction
of
the
bill,
but
would
attorneys
rat
on
others?
And
where
to
draw
the
line?
Umberg
said
that
the
snitch
rule
would
not
be
applied
to
an
attorney
who
is
obnoxious
in
a
deposition.
Really?
What
if
that
attorney
is
a
habitual
offender,
but
never
with
the
same
opposing
counsel?
Where
is
the
line
between
zealous
representation,
which
is
our
obligation
as
lawyers,
and
misconduct?
Would
perception
be
enough
to
trigger
the
rule?
And
what
about
the
attorney
who
chooses
not
to
report?
Would
that
attorney
be
disciplined
for
the
failure
to
do
so
if
the
attorney
had
a
good
faith
belief
that
opposing
counsel’s
actions
or
inactions
were
neither
wrongful
nor
misconduct?
Although
the
intent
of
SB
42
is
to
follow
ABA
Model
Rule
8.3,
there’s
a
big
difference
in
the
language.
The
model
rule
requires
that
there
be
a
“a
substantial
question
as
to
that
lawyer’s
honesty,
trustworthiness
or
fitness
as
a
lawyer
in
other
respects”
for
there
to
be
a
referral.
Right
now,
there’s
no
such
qualification
in
SB
42.
Amendments
are
sure
to
come.
So,
apologies
to
my
editor,
who
thought
that
once
I
was
through
with
Girardi
(is
that
even
possible?),
I’d
write
on
topics
other
than
the
California
bar.
But
it’s
the
gift
that
keeps
on
giving.
Happy
Hanukkah
and
Merry
Christmas.
Jill
Switzer
has
been
an
active
member
of
the
State
Bar
of
California
for
over
40
years.
She
remembers
practicing
law
in
a
kinder,
gentler
time.
She’s
had
a
diverse
legal
career,
including
stints
as
a
deputy
district
attorney,
a
solo
practice,
and
several
senior
in-house
gigs.
She
now
mediates
full-time,
which
gives
her
the
opportunity
to
see
dinosaurs,
millennials,
and
those
in-between
interact
—
it’s
not
always
civil.
You
can
reach
her
by
email
at
oldladylawyer@gmail.com.