On November 3, 2022, the State Bar published an open letter and disclosures regarding Thomas V. Girardi closed cases. Here are frequently asked questions about this disclosure.
Simply put, in this instance, the State Bar should have done more to protect the public. Following an audit of past complaints against Girardi that included an assessment of whether applicable policies, procedures, statutes, and rules were appropriately applied and revealed flaws in the handling of certain complaints, the State Bar initiated an independent investigation that was announced in January 2022. The law firm of Halpern May Gelberg LLP is investigating whether the State Bar’s handling of past discipline complaints against Girardi was affected by his connections to or influence at the State Bar. The May investigation, still ongoing, is intended to identify actions by anyone with ties to the State Bar that may constitute malfeasance in how discipline complaints against Girardi were handled. We have also taken–and will continue to take–a number of steps to ensure that this does not happen again.
By statute, the State Bar has confidentiality obligations. Even when confidentiality is waived, the law strictly limits what information can be shared. This is noted on the list that we published. For example, California Business & Professions Code Section 6086.1(b)(2) does not authorize disclosure of the name of the complainants or investigators.
Yes. The ongoing May investigation is looking into whether the agency’s handling of complaints against Girardi was affected by his connections to, or relationships or influence with, the State Bar, its staff, and leadership. Additional information about the investigation will be released when it is completed.
Over the past 18 months, the State Bar has taken numerous decisive actions to improve the discipline system. For starters, in September, the Board created the Client Trust Account Protection Program, which was approved by the California Supreme Court on October 24, 2022. This program will enable the State Bar–for the first time–to require licensed attorneys to report information about all of their client trust accounts annually. This type of reporting will provide the State Bar with new tools to enhance accountability and oversight of client trust accounts and deter misconduct.
In addition, the State Bar has:
The Board of Trustees determined to resolve the ambiguity in the statute in favor of transparency, extending to closed cases the discretionary authority to waive confidentiality when warranted for the protection of the public. The Chair and Chief Trial Counsel considered several factors, including:
Complaints may be closed in intake for several reasons, including when the complaint’s allegations fail to provide a basis for believing that further investigation would reveal any violation of the State Bar Act or Rules of Professional Conduct; or when a complainant declines to provide additional requested information considered necessary to any disciplinary proceedings.
Today’s disclosure releases the information we believe is permitted following waiver of confidentiality under Business & Professions Code section 6068.1(b)(2). Separately, we anticipate releasing additional information upon completion of the May investigation.
To date, 33 applications for reimbursement by the Client Security Fund related to Girardi have been completed, with more than $1.11 million paid (each application can have multiple recipients). Currently 16 applications seeking approximately $1.48 million are pending.
The update, which appears in red font in Attachment B to the Chair’s letter, indicates that there were three cases that resulted in a private reproval. When the Office of Chief Trial Counsel filed a petition for disbarment on November 10, 2021, the private reproval connected to case numbers 93-O-14209, 95-O-11864, and 96-O-01837 was attached as an exhibit, and under the State Bar Rules, the private reproval then became a matter of public record. It was inadvertently not included in the initial disclosure.
If the State Bar gave that impression in its initial disclosure and accompanying material, it did so inadvertently and incorrectly. The State Bar has previously directed its staff to look for patterns of prior complaints when reviewing new complaints. However, this process involved reviewing complaint histories manually and lacked an overarching framework for specifically how those histories should be taken into account.
The State Bar has now developed an automated process for identifying patterns of complaints at intake. This automated process uses 25 general categories for complaint allegations to make it easier for staff to identify patterns of complaints.
For matters involving reports of overdrafts from client trust accounts, the State Bar has implemented an additional new policy regarding consideration of prior complaints. As set forth in the Chair’s open letter, this new policy states that cases resulting from even small bank overdrafts may not be closed without investigation if the attorney has a pending or prior (within the last two years) overdraft or client trust account-related complaint.