By Lauren Holappa

On October 7, 2022, to enhance transparency and accountability, the State Bar filed a supplemental brief to inform the California Supreme Court of its new interpretation of Business and Professions Code section 6086.1, subdivision (b)(2).

Pursuant to SB 211 (Umberg) (Chapter 723, Statutes of 2021), the State Auditor conducted a performance audit of the California State Bar’s attorney complaint and disciplinary process. The audit, issued on April 14, 2022, raised significant concerns regarding the closure of complaints against certain attorneys using non-public measures, as this did little to deter attorneys from re-engaging in the same misconduct. [27:1 CRLR 139–141; 27:2 CRLR 122–123]

The Bar previously interpreted the statute only to permit the disclosure of pending and active cases but recently concluded that the statute is subject to more than one reasonable interpretation. It, therefore, determined that “the discretionary authority to waive confidentiality granted by that statute to extend to closed investigations would be more consistent with its current understanding of its public protection mission and policy of transparency.” In short, the Chair’s or Chief Trial Counsel’s discretion to waive confidentiality under section 6086.1, subdivision (b)(2) now extends to closed investigations.

This new interpretation came after the disbarment of attorney Thomas Girardi. In its supplemental brief, the Bar informed the Supreme Court that it intends to disclose the information authorized under section 6086.1(b)(2) relating to the closed investigation of Girardi.

The Bar explained that “the filing of the Supplemental Brief is the latest example of the State Bar’s ongoing commitment to transparency, as well as fulfilling its public protection mission.”