By Alaina Dye
At its November 14, 2019 meeting, the State Bar’s 2020 Governance in the Public Interest Task Force voted to focus its efforts and report on proactive regulation, also known as risk-based regulation, which seeks to prevent lawyers from harming the public rather than retroactively fixing such harm. Pursuant to Business and Professions Code section 6001.2, the Task Force is charged with preparing and submitting a report to the Supreme Court, the Governor, and the Assembly and Senate Committees on Judiciary that includes its recommendations for enhancing the protection of the public, and ensuring that protection of the public is the highest priority in the licensing, regulation, and discipline of attorneys. By statute, the Task Force is comprised of seven appointed members: three attorney members of the Board of Trustees, three public members of the Board of Trustees, and the Chair of the Board of Trustees, and must convene and submit its report every three years.
In its latest report, the 2017 Governance in the Public Interest Task Force recommended organizational changes to the State Bar’s sub-entities, altering the composition and size of the Board of Trustees, and separating certain sub-entities whose functions did not align with the State Bar’s priorities. [24:2 CRLR 120–126]
At its February 7, 2020 meeting, the 2020 Task Force began its review of proactive regulation and defined risk-based regulation as the use of data to identify lawyers who are at-risk of receiving complaints or discipline. During the meeting, Professor of Health and Law at Stanford University, David Studdert, presented on risk-based regulation in the medical profession. Specifically, he advised the Task Force that medical regulatory bodies use collected data about physicians to predict the likelihood that a physician will receive a complaint. The medical profession assigns “PRONE scores” to each physician that receives a complaint. The PRONE score determines the physician’s risk level based on factors such as the number of prior complaints, times since the last complaint, sex, profession or specialty, and age. Professor Studdert emphasized that for the State Bar to successfully implement risk-based regulation, it must follow predictions with effective interventions for at-risk lawyers. For example, the Task Force explained that such risk-based regulation may benefit the State Bar’s Office of Chief Trial Counsel (OCTC) by creating a mechanism that identifies common complaints against lawyers so that OCTC may allocate its resources to preventative education for at-risk lawyers.
At its March 5, 2020 meeting, the Task Force discussed the State Bar’s attorney discipline system and reviewed other jurisdictions that implemented risk-based regulation. Tara Sklar, Professor of Health and Law at the University of Arizona presented the procedures and findings from her study on risk-based regulation of lawyers in Australia. Her presentation revealed that 4% of lawyers accounted for 58% of the total complaints submitted to Australia’s regulatory body. The presentation also indicated that solo practitioners were more likely to receive complaints than lawyers employed by law firms. This demonstrates a “clustering” of complaints where lawyers with certain characteristics receive most of the complaints. Risk-based regulation can be used to recognize these clusters in order to identify lawyers in need of support, avert careers of misconduct, enhance protection for vulnerable clients, target scarce regulatory resources, reduce overall complaints, and improve the public’s satisfaction with the complaint process. The Task Force plans on utilizing Professor Sklar’s presentation in its final report to make recommendations for implementing a proactive discipline system in California.
The Governance in the Public Interest Task Force is expected to submit its final report to the Supreme Court, the Governor, and the Legislature by its statutory deadline on May 15, 2020.