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Seal of The State Bar of California The State Bar of California

Frequently Asked Questions: State Bar Disclosure of Girardi Closed Cases

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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.

  1. The number of closed complaints against disbarred attorney Thomas Girardi—more than 200 over a 40-year period—is surprisingly high. How is it possible that the State Bar failed to discipline him for so long?

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.

  1. Why did you not disclose more information about these cases?

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.

  1. Are you investigating whether people still at the State Bar in key attorney discipline positions were involved in closing complaints against Girardi that allowed him to continue to practice law?

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.

  1. Are there any members of the current Board of Trustees, or the current leadership team, who have relationships, business dealings, or any other connection to Girardi?

No.

  1. What is the State Bar doing to prevent something like this from happening again?

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:

    • Appointed George S. Cardona, a former federal prosecutor, as Chief Trial Counsel. His was the first such confirmation by the Legislature in 10 years. The new leadership team was further bolstered by the hiring of Ellin Davtyan as the State Bar’s new General Counsel.
    • Developed an automated process for identifying patterns of prior complaints at intake;
    • Implemented a new policy so that when new complaints are received about an attorney, the State Bar can identify previous complaints against that attorney and consider those previous complaints in determining how to proceed;
    • Implemented a new policy so that cases resulting from small bank overdrafts are not closed without investigation if the attorney has a pending or prior (within the past two years) overdraft complaint or a complaint related to a client trust account;
    • Implemented policies and procedures requiring conflict checks by investigators and attorneys as cases are assigned, and closed;
    • Integrated a conflicts-of-interest database with the State Bar’s case-management system, to improve monitoring of conflicts;
    • Revised policy related to the current semiannual random audits of closed cases, to ensure the independence and objectivity of the external auditor, and establish formal oversight by the Board to ensure that the external auditor’s findings are addressed; and
    • Changed polices to provide clearer guidance and limits on the use of nonpublic measures to close cases.
  1. Why did the State Bar change its mind about releasing information from the closed Girardi cases?

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:

    • The State Bar’s public protection mission and commitment to transparency in furtherance of this mission;
    • Girardi’s disbarment;
    • Concerns raised by the State Auditor earlier this year; and
    • The growing amount of information already publicly available about Girardi’s conduct.
  1. Many Girardi complaints were closed at intake. Why are cases closed so early in the process?

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. 

  1. The State Bar has said that additional information about its handling of disciplinary investigations involving Girardi is forthcoming. When can we expect to see that information, and what will be in it that was not in today’s disclosure?

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.

  1. The open letter mentions payments to Girardi’s victims from the Client Security Fund. How much has been paid to date, and how many applications remain pending?

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.

  1. What was the update to the Girardi disclosure on November 4, 2022?

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.

  1. Your release made it seem like the State Bar just now started looking at patterns of complaints. How can that possibly be true?

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.

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