Report 2020-030 All Recommendation Responses

Report 2020-030: The State Bar of California: It Is Not Effectively Managing Its System for Investigating and Disciplining Attorneys Who Abuse the Public Trust (Release Date: April 2021)

Recommendation for Legislative Action

To clarify state law and provide more transparency regarding the nature of the existing backlog of discipline cases, the Legislature should revise state law to remove Business and Professions Code section 6140.2, which has similar requirements for the State Bar's goals and policies for timely case processing but omits the State Bar's authority to designate complicated matters.

Description of Legislative Action

SB 211 (Chapter 723, Statutes of 2021) revises the goal and policy of the State Bar as it relates to complaints alleging attorney misconduct and requires, among other things, the State Bar to propose, no later than October 31, 2022, case processing standards for competently, accurately, and timely resolving cases within the trial counsel's office. This provision states that it is also the goal and policy of the State Bar, as to complaints designated as complicated matters by the trial counsel's office, to dismiss a complaint, admonish the attorney, or have the trial counsel's office file formal charges within 12 months after it receives a complaint alleging attorney misconduct.

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

Description of Legislative Action

As of June 29, 2021, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

To clarify state law and provide more transparency regarding the nature of the existing backlog of discipline cases, the Legislature should revise Business and Professions Code section 6086.15, subdivision (a)(1), to require the State Bar to include in its discipline report the number of complicated matters as of the end of the reporting period that were pending beyond 12 months after receipt without dismissal, admonition, or the filing of formal charges by the trial counsel's office.

Description of Legislative Action

SB 211 (Chapter 723, Statutes of 2021) revises the goal and policy of the State Bar as it relates to complaints alleging attorney misconduct and requires, among other things, the State Bar to propose, no later than October 31, 2022, case processing standards for competently, accurately, and timely resolving cases within the trial counsel's office, and requires the State Bar to include in its discipline report a description of its success in meeting these case processing goals.

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

Description of Legislative Action

As of June 29, 2021, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

To provide itself sufficient time to review the discipline report before considering the annual fee bill, the Legislature should amend state law to require the State Bar's discipline report to cover the 12 months from July 1 through June 30 of the previous year and to require that the State Bar submit the discipline report annually by October 31.

Description of Legislative Action

SB 211 (Chapter 723, Statutes of 2021) requires the State Bar to provide its Annual Discipline Report by October 31, rather than April 30, of each year and the report must cover the period from July 1 of the previous calendar year to June 30 of the year in which the report is issued.

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

Description of Legislative Action

As of June 29, 2021, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

To provide itself sufficient time to review the discipline report before considering the annual fee bill the Legislature should, in the year in which it amends the discipline report's time period, require the State Bar to report information for both the prior calendar year and the newly defined period to ensure that stakeholders can compare the information for the newly defined period to prior years.

Description of Legislative Action

SB 211 (Chapter 723, Statutes of 2021) requires the Annual Discipline Report due on October 31, 2022, to include data from the prior fiscal and calendar year.

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

Description of Legislative Action

As of June 29, 2021, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation #5 To: Bar of California, State

To ensure that it is operating efficiently, the State Bar should assess the impact of its discipline system reorganization, including determining how the changes have affected its ability to efficiently resolve cases and fulfill its mandate to protect the public. Based on the assessment's results, the State Bar should determine whether additional changes to its organizational structure are warranted.

Annual Follow-Up Agency Response From October 2022

The Office of Research & Institutional Accountability completed the development of new case processing standards as of October 31, 2022. A retired annuitant was retained in summer 2022 and has begun work on the workforce planning redesign analysis.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

The State Bar is still in the process of implementing this recommendation. Because the State Bar did not provide a scope of work for its workforce planning redesign analysis, it is not clear whether that process will address this recommendation.

1-Year Agency Response

This effort is delayed due to insufficient staffing resources. The Office of Research & Institutional Accountability has been focused on developing new case processing standards and estimates of staffing resources required to meet these standards as directed by Senate Bill 211. A retired annuitant will be engaged in summer 2022 to complete the workforce planning redesign analysis.

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

The State Bar is still in the process of developing a plan to implement this recommendation.

6-Month Agency Response

Initial meetings have been held with the Executive Director of the Bar and the Office of Research & Institutional Accountability to define the scope of work and assign resources to this project. A preliminary list of the reforms proposed and their status in 2017 has been developed and will be used to identify data that bear on specific recommendations. Development of a project plan will continue through the fall of 2021.

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

The State Bar is still in the process of developing a plan to implement this recommendation.

60-Day Agency Response

Staff in the Office of Research and Institutional Accountability will begin developing an evaluation plan in the fall of 2021 and begin executing that plan in early 2022. We expect preliminary results to be available in the spring of 2022.

California State Auditor's Assessment of 60-Day Status: No Action Taken

The State Bar has not yet taken any action toward implementing this recommendation.

Recommendation #6 To: Bar of California, State

To determine if the changes to its discipline process have been effective and to help it identify problems in specific phases of its process before they affect the backlog, the State Bar should implement methods to monitor its enforcement process performance, including comparing the trial counsel staff 's performance against its benchmarks.

Annual Follow-Up Agency Response From October 2022

After review and evaluation, the State Bar is in the process of modifying and updating the benchmark report to improve the monitoring of investigative performance.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

We look forward to reviewing the State Bar's progress in establishing and tracking the measures of its performance. However, the State Bar stated it established benchmarks in 2020, and one and a half years have elapsed since we made this recommendation that the State Bar track it performance against those benchmarks. Thus, we encourage the State Bar to approach this task with a measure of urgency.

1-Year Agency Response

The State Bar has developed a weekly operational report to monitor whether OCTC team members accomplish investigative tasks consistent with interim case processing benchmarks. The benchmarks encourage the prompt disposition of attorney discipline matters as a whole and assist OCTC management in identifying problems in specific phases of its process so that they can be addressed before they affect the backlog. The benchmarks are based on case priority (P1, higher priority cases, and P3, lower priority cases) and are tied to interim steps common to many investigations. Examples of benchmarks and their time frames include: interview the complainant (20 days for P1 and 30 days for P3 cases; issue subpoenas and demands for documents (30 days for P1 and 40 days for P3 cases); and contact the respondent (30 days for P1 and 40 days for P3 cases). The starting point for each timeframe is the date assigned to the current investigator (less any abated time). The State Bar will continue to review, evaluate, and modify the benchmarks and time frames in the weekly operational report as appropriate.

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

The State Bar did not substantiate that it performs this analysis on a regular basis as a method of monitoring performance.

6-Month Agency Response

Staff in the Office of Research & Institutional Accountability have produced draft reports of benchmarks to the Office of Chief Trial Counsel and have been reviewing these to ensure the reliability and validity of the data. These benchmarks will be provided after they have been finalized.

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

We look forward to reviewing the State Bar's progress in establishing and tracking measures of its performance.

60-Day Agency Response

Staff in the Office of Research and Institutional Accountability will begin developing an evaluation plan in the fall of 2021 and begin executing that plan in early 2022. The evaluation plan will require an analysis of management and operational reports to allow us to implement the plan effectively; as a result, we expect preliminary results to be available in the spring of 2022.

California State Auditor's Assessment of 60-Day Status: No Action Taken

The State Bar has not yet taken any action toward implementing this recommendation.

Recommendation #7 To: Bar of California, State

To reduce its backlog of discipline cases and ensure that it has appropriately allocated resources to all phases of its discipline process, the State Bar should develop and recommend an appropriate backlog measure and goal as required by state law, including the number of days at which a case should be added to the backlog as well as a goal for the number of cases in the backlog.

Annual Follow-Up Agency Response From October 2022

Staff completed development of the case processing standards required by SB 211 as of October 31, 2022. The proposed standards include backlog metrics that define when cases are in backlog, and a goal for no more than 10% of cases to have case processing times that exceed the backlog metrics.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

1-Year Agency Response

In consultation with state and national experts as directed by SB 211, the State Bar has developed a framework for case processing standards that considers the mechanics of the discipline process, case complexity, and risk to public protection. Staff presented an overview of the framework to the Regulation and Discipline Committee in March 2022. The next step in this work is to develop case processing standards for each of the eight types of cases the framework identifies.

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

We look forward to reviewing the State Bar's proposed case processing standards and the resulting backlog measure and goal.

6-Month Agency Response

This proposal was presented to the Legislature and rejected. Instead, the Legislature added language to Senate Bill 211 requiring the State Bar to develop case processing standards to be developed and reviewed by the Legislative Analyst's Office.

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

We look forward to reviewing the results of State Bar's collaboration with the Legislative Analyst's Office.

60-Day Agency Response

On June 21, 2021 the State Bar presented legislative staff with proposed case-processing time standards in lieu of the current static backlog measure that looks at a single point in time. The proposal is derived from the civil case processing standards that apply to trial courts. Conversations will continue regarding this proposal and the statutory changes that would be required to implement it. Further conversations will be held in the coming weeks.

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

The State Bar provided a draft proposal for discipline case processing goals. We look forward to reviewing the State Bar's efforts to collaborate with the Legislature in implementing the proposal.

Recommendation #8 To: Bar of California, State

To reduce its backlog of discipline cases and ensure that it has appropriately allocated resources to all phases of its discipline process, the State Bar should determine the staffing level necessary to achieve the goal it develops and recommends, as required by state law.

Annual Follow-Up Agency Response From October 2022

Staff completed a preliminary estimate of staffing resources necessary to achieve the proposed case processing standards, and this estimate is included in the report proposing the new case processing standards. Staff plans to conduct a more complete staffing needs analysis once the Legislature provides guidance regarding the acceptability of the proposed case processing standards.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

We look forward to reviewing the State Bar's more complete staffing analysis after the Legislature assesses the proposed case processing standards.

1-Year Agency Response

Once the case processing standards have been developed, staff will estimate the staffing resources necessary to achieve these standards.

California State Auditor's Assessment of 1-Year Status: No Action Taken

State Bar has not yet performed the recommended analysis.

6-Month Agency Response

Senate Bill 211 requires that the State Bar develop case processing standards for the attorney discipline system. The State Bar is currently evaluating measures that will capture four dimensions of this work: efficiency, effectiveness, timeliness, and fairness. As required under Senate Bill 211, the State Bar will estimate the resources necessary to achieve these goals and present that analysis to the Legislative Analyst's Office for review.

California State Auditor's Assessment of 6-Month Status: No Action Taken

State Bar has not yet performed the recommended analysis.

60-Day Agency Response

Assuming the current trend in the number of new complaints received by the discipline system continues, the proposal presented to legislative staff is largely intended to capture the case processing times the State Bar is able to meet with the current resources. In addition, to addressing the current backlog, State Bar staff and Board members proposed to legislators and legislative staff that one time funding be provided to assist the State Bar in reducing the current backlog.

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

The State Bar's response does not address our recommendation. To ensure it is using its resources efficiently and effectively, in our 2019 report, we recommended that the State Bar develop benchmarks for the duration of each step in its investigation process. In 2020 the State Bar asserted that it had established these benchmarks. However, as indicated on page 17 of our report, the State Bar does not track the performance of its discipline system staff for comparison against these benchmarks.

Although the State Bar asserts that the proposal it has submitted matches its current case processing times, without tracking the performance of its staff it is not clear if the current case processing times represent an effective and efficient use of its resources.

Recommendation #9 To: Bar of California, State

To reduce its backlog of discipline cases and ensure that it has appropriately allocated resources to all phases of its discipline process, the State Bar should work with the Legislature to establish the backlog measure and goal it develops and recommends, and to revise its reporting requirements accordingly. If necessary, the State Bar should also request the additional resources required to meet the goal.

Annual Follow-Up Agency Response From October 2022

A report proposing new case processing standards, including proposed backlog metrics and goals, will be submitted to the Legislature by October 31, 2022. Once approved by the Legislature, staff will work with legislative staff to revise reporting requirements associated with these standards.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

We look forward to reviewing the State Bar's actions to implement this recommendation, pending the Legislature's feedback on its proposed backlog measure and goal.

1-Year Agency Response

The new case processing standards under development will, by definition, articulate a new backlog standard. Once approved by the Legislature, staff will work with legislative staff to revise reporting requirements associated with these standards.

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

We look forward to reviewing the results of State Bar's work with the Legislature.

6-Month Agency Response

Senate Bill 211 requires that the State Bar develop new case processing standards, estimate the resources needed to achieve these goals, and present that analysis to the Legislative Analyst's Office. Under Senate Bill 211, the Legislative Analyst's Office is then required to report on its review to the Senate and Assembly Committees. Working with the Legislature to revise the reporting requirements and secure additional resources needed to meet the case processing standards will depend on the outcome of the Legislative Analyst's review.

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

We look forward to reviewing the results of State Bar's work with the Legislative Analyst's Office.

60-Day Agency Response

On June 21, 2021 the State Bar presented legislative staff with proposed case-processing time standards in lieu of the current static backlog measure that looks at a single point in time. The proposal is derived from the civil case processing standards that apply to trial courts. Conversations will continue regarding this proposal and the statutory changes that would be required to implement it. Further conversations will be held in the coming weeks.

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

The State Bar provided a draft proposal for discipline case processing goals. We look forward to reviewing the State Bar's efforts to collaborate with the Legislature in implementing the proposal.

Recommendation #10 To: Bar of California, State

To ensure that the State Bar's discipline report presents accurate, complete, and consistent information as state law requires, the board should require the designated committee to review, evaluate, and approve the discipline report before submitting it to the board. Additionally, the committee should develop procedures outlining how the State Bar should compile the report in accordance with statutory requirements. The committee should approve these procedures for the State Bar's use before finalizing its 2021 discipline report.

Annual Follow-Up Agency Response From October 2022

The State Bar has developed internal guidelines and procedures for the full Board of Trustees (which now sits as the Regulation and Discipline Committee) to review the ADR. The internal guidelines and procedures were approved by the Board at its September 2022 meeting. The annual ADR report has been completed and submitted for review and approval by the Board as part of a special October 2022 meeting.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

It is not clear whether the level of detail in the guidelines and procedures the State Bar has established will result in a review of sufficient rigor to prevent errors of the type we identified during our audit. Nevertheless, the State Bar has established procedures, as we recommended.

1-Year Agency Response

SB 211 changed the deadline for submitting the Annual Discipline Report (ADR) to October 31. The State Bar will develop guidelines and procedures for the Regulation and Discipline Committee's review of the ADR and present a proposal to the Board of Trustees in July 2022.

California State Auditor's Assessment of 1-Year Status: No Action Taken

The State Bar is still in the process of developing its plan to implement this recommendation.

6-Month Agency Response

Statutory amendments that will be discussed with legislative staff surrounding the case processing standards will also address other reporting requirements for the ADR to ensure a common understanding of what is to be reported. Any statutory changes will guide the procedure for how to review the report. Proposed guidelines and procedures for review of the report will be presented to the Board of Trustees in January of next year.

California State Auditor's Assessment of 6-Month Status: No Action Taken

State Bar's discussion of potential changes to the content of the report misses the point of our recommendation. Our recommendation is related to the review process, and improvements to the process for compiling, reviewing, and ensuring the accuracy of the report are not dependent on its content.

60-Day Agency Response

Statutory amendments that will be discussed with legislative staff surrounding the case processing standards will also address other reporting requirements for the ADR to ensure a common understanding of what is to be reported. Any statutory changes will guide the procedure for how to review the report. Proposed guidelines and procedures for review of the report will be presented to the Board of Trustees in January of next year.

California State Auditor's Assessment of 60-Day Status: No Action Taken

The State Bar indicated that it does not intend to propose guidelines and procedures for review of the annual discipline report until January 2022, because the content of the report may change. However, it is not clear how much of the report's content may change. Further, some guidelines and procedures for ensuring the accuracy of the information presented in the annual discipline report could be established regardless of the nature of that information. Thus, it is unclear why the State Bar has chosen not to establish and implement these guidelines immediately, so as to better ensure the accuracy of the 2021 discipline report due April 30, 2022.

Recommendation #11 To: Bar of California, State

To ensure that users of the discipline report can compare information from year to year, the State Bar should describe in each discipline report any changes it makes to its approach to calculating metrics and, for that year, provide information calculated under both its old and new methods.

Annual Follow-Up Agency Response From October 2022

The State Bar has updated the Annual Discipline Report to ensure that all methodological changes are described in the report or its appendices. Where changes were made, those data were provided using calculations under both the new and old methods in the 2022 ADR.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

1-Year Agency Response

The State Bar has updated its Annual Discipline Report's internal quality control procedures to ensure that all methodological changes are described in this report.

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

We requested the State Bar provide documentation to support its assertion and to demonstrate that the change in procedures addresses all aspects of the recommendation. It has not yet provided this documentation. We look forward to reviewing the documentation when the State Bar provides its next response regarding this recommendation.

6-Month Agency Response

The Annual Discipline Report is produced only once a year. SB 211 changed the deadline for submission of the ADR - this will now take place in October, 2022. The State Bar has noted the need to include these changes in the next Annual Discipline Report.

California State Auditor's Assessment of 6-Month Status: No Action Taken

In the absence of policies or procedures addressing this issue, we look forward to reviewing State Bar's implementation of this recommendation in its next annual discipline report.

60-Day Agency Response

The Annual Discipline Report is produced only once a year. The next opportunity to implement these changes will not be until April 30, 2022. The State Bar has noted the need to include these changes in the next Annual Discipline Report.

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

We look forward to reviewing the State Bar's progress towards implementing this recommendation.

Recommendation #12 To: Bar of California, State

To ensure that it receives the best value for the money it spends, the State Bar should establish documentation standards and templates for contract mangers to follow when using the exam exemption.

60-Day Agency Response

The State Bar has revised its procurement policy to require that a best value analysis for the exam exemption, as well as other competitive bidding exemptions, be documented in a new Best Value Memo, which must be submitted by the contract manager with the procurement requisition. A template for the Best Value Memo has been created and provided to the Auditor, along with a copy of the updated procurement policy.

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

All Recommendations in 2020-030

Agency responses received are posted verbatim.