At a meeting last November, the State Bar Board of Trustees heard a report on the first-ever study of racial disparities in California attorney discipline and what the State Bar is doing to continue monitoring and improving equity in its discipline system.
“A demonstrated commitment to inclusion and diversity must extend beyond training and aspirational goal-setting. The release of the Farkas report does exactly this,” said Leah Wilson, Executive Director. “We are grateful for the thoroughness and objectively with which Dr. Farkas addressed this important topic, so critical to our efforts to fulfill our mission. The State Bar’s discipline system needs to protect the public in a way that is fair and unbiased. The report gives us a roadmap to continue probing this complex topic and to address any unintended bias in our discipline system.”
The State Bar engaged George Farkas, Distinguished Professor in the School of Education at the University of California, Irvine, to conduct a thorough quantitative analysis of the likelihood of attorneys of different racial/ethnic groups and genders being placed on probation or disbarred. The study reviewed probations, disbarments, and discipline-related resignations for the last 28 years for approximately 116,000 attorneys admitted between 1990 and 2009. The analysis found statistically significant disparities in probation and disbarment, with the largest differences between black male attorneys and their white male counterparts. But the study also found numerous factors that explained the differences, specifically:
• An attorney’s previous discipline history, which was found to have the strongest effect on discipline outcomes;
• The number of complaints received about an attorney;
• The number of investigations opened against an attorney; and
• The percentage of investigations in which the attorney was not represented by counsel.
To continue monitoring and improving the equity of its attorney discipline processes, the State Bar will:
• Evaluate issues raised by the analysis: disparities in the number of complaints filed by attorney race, gender, and solo practice status; the process of taking complaints and prior discipline into account during State Bar investigations; and the bases for the differential impact of counsel representation on disciplinary outcomes.
• Engage a consultant on bias-free decision-making and processes to make recommendations for:
-Targeted preventative measures the State Bar can take;
-Options for whether and how to take prior complaints into account in the discipline process; and
-Decision matrices and other standardized tools to address any unintended bias in the discipline system.
Other actions taken by the Board of Trustees on November 14 included:
• Fingerprinting Final Deadline: The Board heard an update and approved measures to finalize the nearly two-year effort to re-fingerprint all attorneys in California, enabling the agency to comply with its statutory obligation to receive notices of attorney convictions from the State Department of Justice (DOJ). As of November 7, over 98 percent of attorneys had complied with the Rule of Court requiring new fingerprint records, while approximately 1,575 attorneys had yet to comply. The Board approved an effective date of December 3, 2019, to place on involuntary inactive status any attorney who fails to meet the previous day’s final deadline. The Board also approved adding a consumer alert to an attorney’s profile if they are placed on involuntary inactive status for noncompliance with the re-fingerprinting rule.
The State Bar is reviewing criminal histories received from the DOJ as a result of the re-fingerprinting effort. To date, State Bar staff have received information on at least 1,962 attorneys for whom criminal charges or convictions had not previously been reported. The Office of Chief Trial Counsel (OCTC) evaluates these cases for possible disciplinary charges, prioritizing felony convictions and those in which the crime or conduct amounts to moral turpitude or other conduct warranting discipline. OCTC must then obtain certified records of conviction from the superior courts, along with other supporting documents, in order to proceed with disciplinary action. Approximately 4,000 additional records from the DOJ need to be manually compared with records of attorneys already reported to OCTC to determine if the conviction records are new and could represent grounds for discipline.
Attorneys who have been newly admitted to practice since mid-2019 or who recently transferred to active status will be placed on a new fingerprinting compliance schedule that begins in February 2020.
• Extension for Task Force on Access Through Innovation of Legal Services (ATILS): The work of the ATILS Task Force has garnered extensive interest in the legal community, resulting in more than 1,400 comments submitted on the 16 conceptual proposals circulated for public comment this summer. To give the Task Force additional time to synthesize the comments, solicit feedback from the public at large, and finalize its recommendations to the Board, the Board extended the deadline for the ATILS final report to March 31, 2020.
