State Bar of California Focuses on Fairness in the Discipline System for 2020

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By Madeline Rojer

At the State Bar Board of Trustees’ January 24, 2020 meeting, the State Bar’s interim Executive Director, Donna Hershkowitz, announced in her Executive Director Report that in 2020, the State Bar will highlight and focus on Goal 2 from its 2017–2022 Strategic Plan, to “ensure a timely, fair, and appropriately resourced . . . discipline and regulatory system for the more than 250,000 lawyers licensed in California.” This announcement followed a 2019 report on Disparities in the Discipline System.

The announcement comes after the Board received a Report on Disparities in the Discipline System at its November 14, 2019 meeting. According to the staff memo, the State Bar heard anecdotes of attorneys-of-color being over-represented in the State Bar disciplinary system and authorized a rigorous, quantitative analysis by George Farkas, a Distinguished Professor in the School of Education at the University of California, Irvine, to determine whether there was disproportionate representation of nonwhite attorneys in the attorney discipline system and, if so, to understand its origins, and take corrective action.

The report (see attachment A) revealed that, without controlling for any factors potentially associated with case outcomes, there are statistically significant disparities concerning both probation and disbarment. The largest gender/race disparities can be seen when comparing Black to White, male attorneys. The probation rate for Black, male attorneys over this period was 3.2 percent, compared to 0.9 percent for White, male attorneys. The disbarment/resignation rate for Black male attorneys was 3.9 percent compared to 1.0 percent for White males. Race differences were smaller for Hispanic males and Black and Hispanic females compared to White females.

However, the report concluded that the main factors affecting the attorney discipline case outcomes were: Differential Rates of Complaints (the State Bar receives more complaints against Black, male attorneys than against other attorneys), Impact of Practice Type, Impact of Counsel Representation (lack of counsel in disciplinary hearings), and Impact of Prior Discipline.

On January 24, 2020, at the Regulation and Discipline Committee (RAD) meeting, RAD discussed and adopted its 2020 RAD Work Plan, which includes additional analyses into the fairness of the disciplinary system.  The Committee expects a report on its overall findings by November 2020.

Opportunity for Action:  RAD will be discussing and considering its interim results at is May 2020 and July 2020 public meetings.  Public comments will be accepted at that time.

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