Tuesday, June 9, 2009

Let The Sunshine In

Legal Ethics Forum reported yesterday that California Chief Trial Counsel Scott Drexel has been denied reappointment. I solicited the views of David Cameron Carr, who represents accused California lawyers and has previously commented on posts on this blog.

David's response:

Scott Drexel began his term as Chief Trial Counsel as prepared for success as anyone could have been.  A long career with the State Bar of California, including 16 years running the State Bar Court, combined with the good will of just about everyone who had worked with or around him throughout his long career.  That good will included the California discipline defense bar.


The precise reasons why the Board of Governors denied him reappointment we will never know.  From the defense bar point of view, things began to wrong in the wake the California Supreme Court’s decision in In Re Silverton.  Silverton, in part because of its peculiar facts involving misconduct by a reinstated attorney, and some critical language regarding the Office of Chief Trial Counsel’s charging policies in a footnote, was wrongly interpreted as a sweeping policy statement that the discipline system needed to “get tough” by rigidly enforcing California’s written disciplinary Standards.  In practice, the “get tough” directive resulted in what John Steele at Legal Ethics Forum aptly describes “as a loss of common sense and proportion among state bar prosecutors.”  The epitome was this the prosecution of attorney Van Smith for loaning his impecunious client some money for the rent without complying with Cal. Rule Prof. Conduct 3-300 (essentially the same as Model Rule 1.8(a).)  The State Bar Court issued an admonition, a non disciplinary sanction, to Smith for a technical violation of the rule, while admonishing the Office of Chief Trial Counsel that their pursuit of discipline “might be deemed punitive.”


This new prosecutorial attitude was mirrored by a series of proposed rule changes sponsored by the Chief Trial Counsel regarding permanent disbarment, reinstatement, the alternative discipline program for impaired attorneys and publication of unproven discipline charges on the internet.   Each of these proposals was sold in the name of public protection, and in the case of the permanent disbarment proposal, clearly oversold, as it was pared back after feedback from the California Supreme Court to address only the particular facts of Silverton. Discipline defense counsel perceived these developments as pushing the discipline system in the direction of a punitive system.  


Mechanically, the more aggressive policy meant fewer cases settling in State Bar Court and more cases being tried, with State Bar Court judges double and triple setting trials in an attempt to resolve cases within the court’s time guidelines.  At the same time, for reasons that are not completely clear, the investigation and prosecution processes of the Office of Chief Trial Counsel seemed to have slowed, resulting in a backlog of roughly a 1000 cases where OCTC is ready to pursue discipline charges.  At the same time, that the get tough” policy was being implemented, the State Bar of California was reaching a serious financial crises with projections for budget deficits in the near future.


Another aspect of the “get tough” policy was the increasing willingness of OCTC to pursue discipline charges against criminal prosecutors.  The relative lack of discipline prosecutions against criminal prosecutors had been noted for years. It has been the subject of debate; some scholars, such as Fred Zacarias at USD Law School here in San Diego, finding sound policy reasons for not devoting resources to discipline of criminal prosecutors. Renewed willingness to discipline criminal prosecutors seems part of a national trend.  Yet the Office of Chief Trial Counsel’s decision to pursue disciplinary charges regarding conduct many years old in some of the cases against criminal prosecutors, such a the Field case, has antagonized the criminal prosecutors.


Each of these factors probably played a part in the Board’s decision and collectively they were apparently enough to convince a majority that change was needed.

Of course, I have no personal knowledge of the California situation other than occasional thought (rare for me as a former bar prosecutor) that some dispositions seemed a tad harsh. I have personal knowledge of any number of instances when bar counsel were dismissed for diligence and competence. I hope that one byproduct of the publicity here is to let the sunshine in on the chief bar counsel selection/retention process. (Mike Frisch)


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What do you mean by "I have personal knowledge of any number of instances when bar counsel were dismissed for diligence and competence"?

If correct, then at least the portion about angering prosecutors seems to be politics at work. I definitely agree with your final sentence.


Posted by: FixedWing | Jun 9, 2009 11:19:33 AM

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