GABRIEL PETEK LEGISLATIVE ANALYST JUNE 26, 2019 - California
The California State Bar:Considerations for a Fee IncreaseGABRIEL PETEKL E G I S L AT I V E A N A LY S TJUNE 26, 2019
AN LAO REPORTL E G I S L AT I V E A N A LY S T ’ S O F F I C E
AN LAO REPORTTable of ContentsExecutive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4State Bar Request for Fee Increase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Assessment of State Bar Budgeting Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Assessment of Request for Fee Increase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Alternative Fee Increase Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Other Issue for Legislative Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Appendix A—Examples of Base Licensing Fees for Active Members of Selected Professions. . . . . . . . . . . . . . 25Appendix B—Summary of Major State Auditor Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Appendix C—A Comparison of Disciplinary Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28www.lao.ca.goviii
AN LAO REPORTivL E G I S L AT I V E A N A LY S T ’ S O F F I C E
AN LAO REPORTExecutive SummaryThis report presents our assessment of the State Bar as required by Business and ProfessionsCode Section 6145. Specifically, our analysis focuses on evaluating the portion of the annuallicensing fee charged to attorneys that is deposited into the State Bar’s General Fund and theState Bar’s request for a fee increase in 2020.State Bar Licenses Attorneys and Regulates Their Professional Conduct. The State Barfunctions as the administrative arm of the Supreme Court for the purpose of admitting individualsto practice law in California as well as regulating the professional conduct of attorneys byadopting rules of professional conduct and enforcing them through the administration of its owndisciplinary system. As of June 2019, there are more than 270,000 members of the State Bar—ofwhich about 190,000 (70 percent) are active members able to practice law in California.State Bar Assesses Fees to Support Its Activities. State Bar activities generally are fundedby various fees paid by attorneys for deposit into specific funds to benefit specific programs.In 2019, the total maximum annual fee paid by active members is 430. Of this amount, 333supports the General Fund, which is used to fund most of the State Bar’s operations. In 2019(the State Bar operates on a January through December fiscal year), the State Bar budgetassumes that the portion of the licensing fee deposited into the General Fund will generate 67 million (about 84 percent of total General Fund revenues).State Bar Request for Fee Increase. The State Bar seeks an ongoing 100 fee increase anda one-time 250 assessment from its active members beginning January 1, 2020. The State Barseeks these increases to address the following: Proposed Ongoing Fee Increase. The 100 ongoing fee increase includes: (1) 30 toaddress an operating deficit in which estimated expenditures exceed estimated revenues,(2) 30 to support the extension of retiree health benefits currently available only toexecutive employees to all State Bar employees and a salary increase for representedemployees, and (3) 40 to support the hiring of 58 additional staff to improve disciplinarycase processing times. The State Bar also requests the authority to adjust the entirerenewal fee and the existing 25 disciplinary fee annually to account for inflation. Proposed One-Time Fee Increase. The one-time 250 assessment seeks to cover fiveyears of project costs and includes: (1) 134 to support building improvement costs for fiveyears, (2) 82 to support technology project costs for five years, and (3) 34 to restore theState Bar’s budget reserve level back to 17 percent.Assessment of State Bar Request. Our review of the State Bar focuses on three major areas. State Bar Budgeting Process. The State Bar’s existing budgeting process generally limitslegislative oversight as it is not required to go through the state’s annual budget process.This gives the State Bar more flexibility in its budgeting practices than other similar statelicensing agencies. Additionally, the Legislature is not directly involved in major policydecisions that may have long-term cost implications. Finally, the State Bar consistentlyapproves budgets where its General Fund expenditures exceed its revenues.www.lao.ca.gov1
AN LAO REPORT Proposed Ongoing Fee Increase. Portions of the proposed ongoing fee increase seemreasonable, while others raise concerns. Specifically, providing an ongoing fee increase toaddress (1) an operating deficit and (2) a salary increase for represented employees seemsreasonable. In contrast, the State Bar’s proposed extension of retiree health benefits is apolicy decision that is out of step with other public employers. Additionally, the request foradditional disciplinary staff may be premature. Finally, the request for an annual inflationaryadjustment lacks justification and could limit legislative oversight. Proposed One-Time Fee Increase. While the projects that would be addressed by theone-time assessment merit consideration, there is a lack of justification for providing fiveyears of costs in 2020. Additionally, it is not clear why certain costs are considered one timeinstead of ongoing.Alternative Fee Increase Options. We provide various alternative fee increase options forlegislative consideration. The Legislature can select from these options, or others (such as thoseoffered by the California State Auditor) to calculate the total ongoing and one-time fee increasethat best reflects legislative priorities.Consider Appropriate Level of Legislative Oversight. Regardless of what fee level ultimatelyis approved by the Legislature, our review of the State Bar indicates that increased legislativeoversight could be beneficial to ensure (1) that fee revenues are assessed appropriately tosupport expenditures that are consistent with legislative expectations and priorities and (2) thatfunds are used in an accountable and transparent manner. Such oversight can occur in variousways—such as including the State Bar in the annual budgeting process and/or requiring reportingon various performance or outcome measures.2L E G I S L AT I V E A N A LY S T ’ S O F F I C E
AN LAO REPORTINTRODUCTIONSection 6145 of the Business and ProfessionsCode, as amended by AB 3249 (Chapter 659 of2018, Committee on Judiciary), requires twoassessments of the State Bar of California—oneassessment from the California State Auditor’sOffice (State Auditor) and one from our office. TheState Auditor released its report on April 30, 2019.This report presents our assessment pursuant tothis section of law.Our analysis focuses on evaluating the StateBar’s General Fund portion of the annual feeLAO AnalysisFocuses onSubset of TotalState Bar FeesExamined by theState AuditorThe State Auditorreport examined all StateBar mandatory fees aswell as the State Bar’sproposal for an increaseto mandatory State Barfees. In comparison, ourreport focuses on theGeneral Fund portionof the mandatory feecharged to attorneys.The figure highlights thespecific subset of feesexamined by our reportrelative to those examinedby the State Auditor.charged to attorneys. (The nearby box shows thefees we examine compared with those examinedby the State Auditor.) In this report, we first providebackground on the State Bar and its operations.We then assess the State Bar’s proposal toincrease the fees paid by attorneys in 2020. Finally,we provide the Legislature with alternative feeincrease options as well as some other issuesrelated to State Bar budgeting for legislativeconsideration.Comparison of Active Licensee Fees Examined by theState Auditor and in This Report2019FeeAmount2020State BarProposalExaminedby theState AuditorExaminedin ThisReport 308a254010( 383) 408b254010( 483)xxxxxx———— 801348234xxxx(—)( 330)Elimination of Bias Programsa,bSubtotals 4052( 47) 4052( 47)Total Fees That May Be Charged 430 860FeeMandatory Ongoing FeeLicensingDisciplineClient Security FundLawyer Assistance ProgramSubtotalsMandatory One-Time FeeClient Security FundBuilding ImprovementsTechnology ProjectsRebuilding ReserveSubtotalsxxxVoluntary FeesLegal Services Trust FundLegislative Activitya,ba State law authorizes a 315 annual license fee for active licensees. Existing law allows active licensees to deduct 7 from this amount— 5 if they do not want to fund State Bar legislative activity and 2 if they do not want to fundelimination of bias programs in the legal profession and justice system.b Similar to the 2019 fee amount, 7 may be deducted.www.lao.ca.gov3
AN LAO REPORTBACKGROUNDWHAT IS THE STATE BAR?Licenses Attorneys and Regulates theProfession and Practice of Law in California.The California Constitution requires attorneysto be members of the State Bar to practice lawin the state. The California Supreme Court hasthe power to regulate the practice of law in thestate—including establishing criteria for admissionto the State Bar and disbarment. The State Bar ofCalifornia functions as the administrative arm ofthe Supreme Court for the purpose of admittingindividuals to practice law in California andregulating the professional conduct of attorneysby adopting and enforcing rules of professionalconduct. The State Bar is established by theCalifornia Constitution as a public corporation. TheState Bar currently is governed by a 13-memberboard of trustees (the board). As of June 2019,there are more than 270,000 members of the StateBar—of which about 190,000 (70 percent) areactive members able to practice law in California.Assesses Fees to Support Activities. StateBar activities generally are funded by fees paidby attorneys. As Figure 1 shows, the State Bar’sGeneral Fund—primarily supported by the annualmandatory licensing fee—constitutes nearlyFigure 1General Fund ConstitutesNearly One-Half of State Bar RevenueOther Funds4General Fundone-half of the State Bar’s revenue. The GeneralFund is used to support most of the State Bar’soperations—for example, the General Fundsupports 85 percent of the State Bar’s personnelexpenditures. In addition to the General Fund, theState Bar has various special funds that supportspecific programs administered by the State Bar.(For example, the fee collected for the ClientSecurity Fund is used to provide reimbursementsto clients who suffer financial losses due toattorney misconduct.) The State Bar approved a2019 calendar year budget estimating revenues of 168 million ( 77 million to the State Bar’s GeneralFund) and expenditures of 189 million ( 87 millionfrom the General Fund). The approved 2019 budgetwould require the State Bar to use 10 million ofthe estimated 22 million reserves it carried into2019.HOW DOES THE STATE BAROVERSEE ATTORNEY CONDUCT?California Attorneys Required to MeetVarious Professional and Ethical Requirements.California—similar to other states—has variousprofessional and ethical requirements for attorneyspracticing law in the state. Examples of suchrequirements include: providing competent serviceto existing and former clients, prohibiting false ormisleading communication or advertising of legalservices, and keeping certain information providedby clients confidential. These requirements areoutlined in state law, California Rules of Court, rulesapproved by the board, and the California Rulesof Professional Conduct. Claims of misconduct byattorneys are adjudicated by the State Bar.Overview of Process and WorkloadOverview of State Bar Disciplinary Process.The State Bar administers its own disciplinarysystem primarily through its Office of the Chief TrialCounsel (OCTC) and the State Bar Court (SBC).The OCTC—consisting of teams of attorneys,investigators, and other legal administrative staff—L E G I S L AT I V E A N A LY S T ’ S O F F I C E
AN LAO REPORTreceives, investigates, and prosecutes casesagainst attorneys. The SBC—consisting of judges,attorneys, and other legal and administrative staff—adjudicates these cases. Various other State Bardepartments—such as the Probation Departmentthat supervises attorneys who are required tocomply with certain conditions by the State BarCourt or the Supreme Court—also support thedisciplinary system.As shown in Figure 2, the disciplinary systemconsists of four stages. We describe each of thesestages in greater detail below. Intake Stage. The Intake Stage—also referredto as the Inquiry Stage—generally begins witha written complaint filed with OCTC. The StateBar also may initiate its own investigationsagainst attorneys. After an initial review, OCTCwill either close the complaint (for example,notifying the complainant that no action isto be taken or issuing a warning letter tothe accused attorney) or refer the case forinvestigation. Investigation Stage. The Investigation Stageconsists of OCTC investigators, under theguidance and supervision of OCTC attorneys,analyzing the case through interviews,document review, and other activitiesto determine whether there is clear andconvincing evidence that attorney misconducthas occurred or if the case should be closed(for example, notifying the complainant that noaction is to be taken or reaching an agreementin lieu of discipline for lowlevel violations). Pre-Filing Stage. ThePre-Filing Stage beginswith OCTC evaluating theevidence collected in theinvestigation stage as wellas internally documentingpotential charges andappropriate levels ofdiscipline to seek. If OCTCdetermines there is sufficientevidence to file chargesagainst an accused attorney,OCTC will notify the attorneywww.lao.ca.govin writing of their intent to file formal chargeswith SBC. The attorney and OCTC maythen try to resolve the case by negotiating asettlement agreement. Hearing Stage. If the case is not settled, theHearing Stage begins with the formal filingof disciplinary charges with the SBC. TheSBC’s Hearing Department adjudicates thecase and imposes the appropriate level ofdiscipline—which can include case dismissal,public or private reprovals, probation,suspension, and disbarment. (The SBC alsoreviews settlement terms reached at the endof the pre-filing stage.) For cases where theproposed discipline involves the suspensionor disbarment of the attorney, the CaliforniaSupreme Court reviews the SBC’s findingsand recommended disciplinary action andissues a final order.Cost of Disciplinary System. The StateBar reports it cost 70 million from its GeneralFund to operate its entire disciplinary system in2018—approximately 84 percent of the total 2018State Bar General Fund expenditures. Of thisamount, 45.4 million (or 65 percent) supportedabout 250 positions in OCTC and 12 million (or17 percent) supported about 43 positions in SBC.The remaining 18 percent supported various otherdepartments involved with the disciplinary system.Disciplinary System Workload. As shown inFigure 3 (see next page), the number of casesreceived and closed annually by OCTC hasFigure 2Overview of State Bar Disciplinary ProcessIntakeInvestigationPre-FilingaHearing180 Day Statutory Time Frame for Completiona The State Bar Court reviews settlement terms reached at the end of the pre-filing stage.5
AN LAO REPORTstages of the disciplinary process(shown in Figure 2)—specificallyfor OCTC to dismiss a complaint,admonish an attorney, or fileformal charges against anattorney—within six months (or180 days) after receipt of a writtencomplaint. (State law extendsthis statutory requirement to12 months for those complaintsdesignated as “complicated” bythe Chief Trial Counsel. However,the State Bar indicates it does notmake use of this extended timeframe as state law encouragesadherence to the six month timeframe.)Figure 3Summary of OCTC WorkloadNumber of Cases17,50015,00012,50010,0007,500Cases Filed in SBCCases Closed by OCTC5,000New Cases Received by OCTC2,5002014201520162017OCTC Office of the Chief Trial Counsel and SBC State Bar Court.fluctuated slightly in recent years. Specifically,OCTC received a total of 15,973 cases in 2018and closed 14,855 cases in 2018. Of the totalnumber of cases closed, 13,168 cases (or nearly89 percent) were closed without OCTC takingany action on the case. Additionally, OCTC filed649 cases in the SBC.As shown in Figure 4, the number of casesreceived and closed annually by SBC has declinedin recent years. Specifically, SBC received a total of649 cases in 2018—a decline of 36 percent from2014. At the same time, the SBC closed 562 casesin 2018—a decline of 52 percent from 2014. Of thisamount, about 77 percent were closed with SBCimposing disciplinary action. Finally, SBC had atotal of 899 pending cases at the end of 2018—adecline of about 46 percent from 2014.Case Processing Time Frame Established byStatute for OCTC Workload. State law currentlyrequires the State Bar to complete the first three62018As shown in Figure 5 (seepage 8), OCTC had 5,803 casespending at the end of 2018—anincrease of about 14 percentfrom 2017. Of this amount,1,759 cases (about 30 percent)were backlogged cases—adecrease of 5 percent from 2017.Backlogged cases are cases thatexceed the 180 day statutory timeframe as of December 31.Recent Changes toImprove Process and WorkloadVarious Changes to Improve CaseProcessing Times. To help improve disciplinarycase processing times and reduce the numberof backlogged cases, the State Bar recentlyimplemented various changes. We discuss themajor changes below. New OCTC Team Structure. In April 2017,the State Bar completed a significantrestructuring of OCTC. Prior to this date,OCTC enforcement teams of attorneysand investigators specialized in processingspecific types of complaints. The managementstructure, however, did not reflect thisspecialization-based system. This oldstructure resulted in some challenges—suchas disproportional staff caseloads, conflictinginstructions, and a lack of clear supervisorialL E G I S L AT I V E A N A LY S T ’ S O F F I C E
AN LAO REPORTdirection—that the StateBar believed made caseprocessing less efficient andtimely. The new structureinvolves most enforcementteams becoming generalistteams capable of processingnearly all complainttypes. Additionally, eachenforcement team nowconsists of attorneys,investigators, and supportstaff that report to a singlesupervising attorney. TheState Bar hopes that thisnew structure will improvecase processing times bystreamlining the disciplinaryprocess, providing a clearand simplified supervisorystructure, and cross-trainingstaff to handle a greaterrange of workload.Figur
The State Bar of California functions as the administrative arm of the Supreme Court for the purpose of admitting individuals to practice law in California and regulating the professional conduct of attorneys by adopting and enforcing rules of professional conduct. The State Bar is established by the California Constitution as a public corporation.
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asset management periods to drive the size, shape and resource requirement for the estate. With the nature of property, change takes time to achieve and with budget constraints, innovation driving an expectation to improve and the current baseline where changes to the estate compared to its size have been minimal. As this review progresses it is clear that utilisation of the estate can be .
