California’s Out-of-Whack Ethics System

California’s drama in the legal ethics world continues. After a vote of no confidence from her unionized employees in October, and a presentation to the State Bar of California Board of Trustees by some of her top deputies in November, Chief Trial Counsel Jayne Kim was reappointed by the Board of Trustees in December. If confirmed by the State Senate, she will serve a rare second four-year term as California’s chief prosecutor of other lawyers.

A complicating factor in Ms. Kim’s reappointment is that the State Bar is facing a lawsuit from its former CEO (and former State Senator) Joseph Dunn. In that action, Senator Dunn alleges, among other things, that Ms. Kim employed questionable tactics in supposedly eliminating California’s disciplinary case backlog. In light of Senator Dunn’s suit, many observers question whether the Board of Trustees could have done anything other than reappoint Ms. Kim if the State Bar is to defend against the Senator’s allegations.

Even if the State Bar is not just circling the wagons when it comes to Ms. Kim, the other real possibility is equaling concerning. The Board of Trustees may simply think that the prosecutor’s office is doing right by the citizens of California. The trouble is, the Board of Trustees has repeatedly heard that the Office of Chief Trial Counsel is very much not doing right by the lawyers it regulates. The Board of Trustees seems not to give any credit to the union, the deputy trial counsel’s presentation, and the large number of comments received from defense counsel detailing how Ms. Kim’s administration of the prosecutor’s office has led to extreme injustice toward lawyers.

Now, the State Bar President has weighed in, albeit indirectly, and exposed an obvious lack of concern for the rights of the lawyers being prosecuted by an unreasonable and overzealous prosecutor.  California attorney and former ALJ Dianna Albini was prosecuted by the Office of Chief Trial Counsel with no substantive evidence against her and significant exculpatory evidence.  Nevertheless, Ms. Kim’s office attempted to crucify Ms. Albini for the worst of ethical violations— misappropriation of tens of thousands of dollars. The allegation was that she had never paid a medical lien from client settlement funds – only the lienholder had no record that it was owed money, and it was so long ago that Ms. Albini and the bank had destroyed their records too.  Ms. Albini was exonerated of all charges, but only after losing her ALJ position and having her reputation severely tarnished.

Most of us consider this type of overreaching unacceptable and an indication that there is something very wrong with the handling of the case, if not with the entire system and its leadership. President Pasternak, though, was quoted in the Daily Journal as saying, “If anything, the allegations are that we are trying too hard to protect the public, which is much better than not trying hard enough.”

The State Bar of California appears to be taking its mission to protect the public to such an extreme that the rights of lawyers, members of the very profession bred with the idea of pursuing fairness and justice and protecting the rights of others, are completely irrelevant. The reappointment of Ms. Kim in spite of the intense criticism by those within the system, combined with President Pasternak’s comments, reveal that this may be a very troubling time to be a lawyer in California.

Featured image: “ethics” from Shutterstock.

California’s Out-of-Whack Ethics System was originally published on Lawyerist.