Do you ever feel that sometimes the law uses a sledgehammer to kill a gnat? Here’s a recent example, resulting from, yes, another fallout from the Tom Girardi crash and burn. For those who have fortunately forgotten, Girardi was the hotshot California plaintiff’s lawyer who stole client settlements from various tort cases while living a lavish lifestyle beyond the means of many of us. (Apologies to my editor who thought that a stake had been driven through the heart of that matter, once and for all, but it’s the case that keeps on giving, at least for the California Legislature, the State Bar, and California lawyers.)
Several years back, there was quite a bit of consternation that some retired judges, acting as arbitrators or mediators, palsy-walsy with Girardi in his heyday, were selected as arbitrators or mediators for Girardi’s cases. The Los Angeles Times did extensive (and cringeworthy) reporting on the coziness between Girardi and these retired judges, calling it the “secretive world of private judges.” No one mentioned in the reporting came out looking good.
The Legislature, seizing any opportunity to stick it to the State Bar, decided that it was time to call for the certification of alternative dispute resolution (ADR) professionals, whether retired judges, lawyers, or nonlawyers, whether arbitrators. mediators, or both, and to regulate ADR providers. Effective January 1, 2025, new Business and Professions Code section 6173 required the State Bar to create a voluntary certification program for ADR firms, providers, and practitioners. But just how “voluntary” is it really if the State Bar bestows “certified” on compliant ADR practitioners? And how many retired judges and longtime ADR practitioners will be willing to go through the certification process, even if less of a hassle? And what edge will “certification” provide, if any?
The laudable goal? “Promote adherence to ethical standards for ADR services and establish consumer protection mechanisms.” Will the State Bar be able to handle consumer complaints as efficiently just as they have done in the past? Please. Given its record, I wonder.
The State Bar established a working group to figure out what certification should look like, the requirements for it, continuing education requirements, and so on. The ADR working group has released its proposals with comments accepted until the end of April. Has anyone ever said that regulation begets more regulation? If not, let me be the first. The proposals run more than 100 pages.
The fallout from Girardi continues in proposed legislation pending in Sacramento. The Consumer Attorneys Association of California, a plaintiff’s bar trade group, favors two legislative proposals. One prohibits attorneys from illegally soliciting clients (e.g., capping — but I learned about the prohibition against capping more than 50 years ago). There are other provisions in AB 2039, but the one getting the attention of the trade group is the provision that would revoke the bar license of an attorney with a felony capping conviction. Capping is a “wobbler.” It can either be a misdemeanor or a felony, depending on how it’s charged. How many capping cases are criminally prosecuted rather than in the context of bar discipline? How many attorneys are convicted of felony capping every year?
This trade association wants to help to get rid of bad lawyers. Don’t we all? Our reputation is pretty much a dumpster fire. The LA Times recently wrote about one downtown LA law firm that is alleged to have paid “clients” to file claims in LA County’s multibillion-dollar sexual abuse settlement. The State Bar, among other agencies, is now investigating the firm.
The other measure that the Consumer Lawyers Association wants passed is a bill that would preclude “private equity firms and hedge funds from dictating case strategy after giving money to a law firm.”
How are you going to know that? Would that be discoverable or would such a case strategy be subject to the attorney-client privilege or attorney work product? How would you prove that a funder was running the case strategy and not the lawyer?
The claim is that the intent of both bills is to “crackdown” on the legal profession’s bad actors. That’s stating the obvious. Where have we heard that before? Meanwhile, Tom Girardi, now close to 90 and suffering from dementia, who bears responsibility for the seemingly never-ending cascade of consequences, intended or not, is currently serving more than seven years in a Minnesota federal medical facility. It’s left to others (us) to clean up the mess he made, not just to his clients, but to the profession he betrayed.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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