Little Recourse When Lawyers, Clients Feud
California's Trying Time
If a lawyer errs in the handling of a case - either out of incompetence, malfeasance, or worse - what recourse does a client have?
In California, the answer is "not much," at least not since the nation's largest state bar association laid off 90 percent of its staff, including 62 of the 68 people who work in its disciplinary courts.
Caught in a funding squeeze stemming from a feud with Gov. Pete Wilson (R), officials at the State Bar of California say since June they have not been able to investigate accusations of roguery or incompetence. Indeed, 7,000 cases are now pending, up from 253 complaints that had been waiting six months or longer as of last January.
The state bar has appealed to the California Supreme Court for emergency relief, and the court is scheduled to hear arguments on the request today. But in the meantime, frustration is building for dissatisfied clients - whose only option now is to file a malpractice suit, which is expensive.
"Right now, it's, 'If your lawyer [cheats] you, you have to get another lawyer,' " says Judy Johnson, the bar's chief trial counsel. "It's the ultimate bad-lawyer joke."
DAVID FICKEWIRTH feels that frustration every time he receives a piece of correspondence about the foreclosure on his home. Following the advice of his bankruptcy attorney, he had stopped paying the mortgage.
"She said, 'Don't worry. They can't evict you or anything,'" Mr. Fickewirth says. "Then, her office messed up. Our papers were filed wrong. When the bankruptcy was dismissed, we were almost hopelessly behind."
Fickewirth has since hired another lawyer and, so far, has managed to stall the foreclosure. The bar has charged his former lawyer with negligence in her representation of his case and several others, but no one is available to prosecute her. (The lawyer blames others in her office who made promises to clients without consulting her.)
Even if the state bar gets money from the court, it will probably be awhile before the backlog of misconduct cases eases.
"Once we're reopened, I expect we'll get flooded with complaints," says Ms. Johnson. "The unknown quantity is how many experienced staff members we'll be able to recall. The longer this goes on, the more likely it is that they will have gotten other positions and not be willing to come back. We'll have to start with a green staff. I don't expect us to be up and operating at the level we were before the year 2000."
Another danger sign is the growing pile of notices from banks when lawyers bounce checks on their clients' trust accounts. Such overdrafts often are a clue that the lawyer has embezzled funds. Currently, the bar has approximately 1,700 unexamined bounced-check reports, says Paul Virgo, assistant chief trial counsel.
The difficulties date to a year ago, when Governor Wilson vetoed legislation allowing annual bar dues of $458, leaving the bar authorization to collect only $77 per year from each of California's 132,000 practicing lawyers.
The veto was the culmination of a decades-long dispute over California's "unified bar," which functions both as a regulatory body and an attorney's guild. Many lawyers believe the bar should be a voluntary association, with the regulatory duties assigned to a government agency.
As a guild, the bar has often taken political positions offensive to the state's Republican governors. The governors, in turn, have restricted the bar's funding. Wilson's action was the most dramatic slap at the institution ever.