California audit reveals significant underreporting and underenforcement of attorney discipline

The full report is here. The National Law Journal highlights a few things:

In a review of the agency’s disciplinary files, acting state auditor Michael Tilden’s office found one lawyer who was the subject of 165 complaints over seven years.

“Although the volume of complaints against the attorney has increased over time, the State Bar has imposed no discipline, and the attorney maintains an active license,” the report said.

In another instance, the bar closed 87 complaints against a lawyer over 20 years before finally recommending disbarment after the attorney was convicted of money laundering.

It’s a pretty remarkable story that highlights two things worth considering for future investigation.

First, when Professor Rob Anderson and I highlighted the relationship between bar exam scores and ultimate attorney discipline rates, we could only draw on publicly-available discipline records. In a sense, what we observed was a “tip of the iceberg.” Now, this could come out in a couple of different ways. On the one hand, it might be that the relationship is even stronger, and that attorney misconduct manifests earlier, if we had complete access to the kind of complaints that the California bar has. On the other hand, it might also be the case (as we point out in the paper) that some attorneys are better at concealing (or defending) their misconduct than others, and that might be hidden in the data we have. It would be a separate, interesting question to investigate.

Second, it highlights the inherent error in comparing attorney discipline rates across states. California’s process is susceptible to unique pressures or complications, as all states’ systems are. You cannot infer much from one state to another (unless you are looking at relative changes in states over time as a comparative benchmark), which is an effort some have (wrongly) attempted.

It will be interesting to see what comes out of the reforms proposed in California and if the effort improves public protection.