Up Against the Bar

By Tom McNichol

I'm a beautician, not a magician."

That's the first thing attorney Jerry Fishkin tells his nervous clients when they walk into the offices of Fishkin & Slatter in Walnut Creek. For the past 16 years Fishkin has focused his private practice on attorney ethics and defending lawyers who are being investigated and prosecuted by the California State Bar on disciplinary charges. Receiving a State Bar complaint is every lawyer's nightmare, and Fishkin's first order of business is to convince the accused attorney that this is no bad dream--and he's no Houdini.

"There's a pretty steady number of attorneys who come through my office who at some point say, 'Can't you just make these people go away?' " Fishkin says. "And the answer is, 'No. I can't make the bar just go away, like a magician. But I can help explain what you did, and the circumstances behind it, and minimize the hit.' "

Fishkin is a long-standing member of the small fraternity of California lawyers, numbering 50 at most, who do this kind of work. They are the counselors of counselors--meta-lawyers, if you will--whose clients are the profession's walking wounded. Some bar defense lawyers, like Fishkin, also provide ethics advice to keep attorneys out of trouble in the first place.

"We're basically cowboys and cowgirls in this field," Fishkin says. "Almost all State Bar defense attorneys in California are in one- or two-person law firms. We all know each other, we all talk. I'd say 10 to 15 percent of our clients move around and hire several of us in succession. A client will come to one of us, and then they don't like the advice we give, so they'll go to the next one. If you're going to do this specialty, you'd better be prepared to be second-guessed, because all your clients are attorneys."

California's State Bar Court is unique, with perhaps the most highly structured discipline apparatus in the nation, including its own independent professional judges. Moreover, the State Bar Court cases are adversarial proceedings, with full discovery and formal rules of evidence--none of which is necessarily good news for the accused.

When he takes on a new client, Fishkin ushers him or her into his small, unadorned office and closes the door. He pauses and looks the attorney square in the eye.

"The first time I see a client, I'll have him sit across from me at my desk. I don't take notes. I don't check email or take calls. I just listen to his story. By the time he's done, I have a fairly good idea of what his case is about and where it's going--it has to do with how he defines the facts; it has to do with what he tells me and what he doesn't tell me. If you are accused of misappropriating money from a trust account, you should be able to walk into my office with a stack of papers and be able to show that you didn't do it. If you come in and have a long, convoluted story, that's trouble. Hell, I raised four kids, I know when people aren't being truthful.

"You see a lot of hubris," Fishkin continues. "Sometimes the attorney wants to defend himself because he thinks, 'I'm a trained advocate, why should I spend $400 an hour on Jerry Fishkin when I can handle it myself?' The other thing you see is that a lot of attorneys get self-righteous. They'll say to me, 'I did all this good work for the client and look what happened.' Well, I don't care about all the good work you did for the client because the State Bar doesn't care."

Like attorneys in many other practices, Fishkin often must be the bearer of bad news. And over the years, he has developed a well-honed technique for introducing unwelcome truths, in doses that can be tolerated.

"It's kind of like being a cancer doctor," he says. "You start by saying, 'Well, the good news is that it's not necessarily fatal; let me explain to you about chemo.' So when I have a client that's going to be suspended, I tell him, 'The good news is you're not being disbarred.' You have to talk them down in stages, let them get used to the bad news a little bit at a time. I try not to overwhelm them all at once, because after they get the bad news they're not even listening to you. I'll say to them, 'OK, there was 50 grand missing from your trust account for twelve months, and the fact that you put it back does not get you forgiveness. You're going to be suspended, and it's going to be public. If you can accept that, then let me tell you why I think the suspension they're offering is a good deal or not.' Then I always give them at least a few days to think it over, because they're too pissed off and emotional to make a sensible decision on the spot."

Depression, substance abuse, personality disorders--these are among the problems that commonly haunt the accused in this business. Which means that discipline defense lawyers often must act as de facto therapists, as well as legal counselors.

"We have to be like psychologists or we're not going to be any good at our job," says sole practitioner Carol M. Langford, who practices State Bar defense just down the road from Fishkin in Walnut Creek and is an adjunct professor at UC Hastings College of the Law. "I've got books on mental health and personality disorders just so I can deal with some of my clients better."

Indeed, Langford's work space looks more like a shrink's office than an attorney's. There's artwork on the wall, tasteful antiques, and a cozy couch. Bottled water and snacks are available, and a box of tissues is always at the ready.

"I have a case right now where the lawyer has depression issues," says Langford. "Those clients are a lot harder to deal with. They will cry in front of you, they'll cry in front of the prosecutor, they'll be argumentative. They'll say to you, 'Why is the bar doing this to me? I don't understand,' and you have to say, 'Here's what happened, here's what the bar does--don't let it get you down.' You end up explaining yourself over and over again. These are very high-maintenance people. When people think they're going to lose their livelihood, they freak. And if you already have someone who's weak, they get really squirrelly.

"Clients in this line of work will tell you things that normal clients won't tell you," Langford adds. "They'll tell me, 'I lost my marriage because of my depression,' or 'I can't see my child,' or 'I've alienated my entire family.' It's sad. Sometimes, all they have is the money they made in the law. They have nothing else."

But as wrenching as these stories are, for seasoned State Bar defense attorneys it's difficult sometimes not to experience at least a little compassion fatigue.

"I used to have more patience when I started, but now my bedside manner sucks," laughs Arthur L. Margolis, a Los Angeles attorney who partners with his ex-wife, Susan, in Margolis & Margolis, specializing in State Bar defense and legal ethics. "You hear a lot of self-justification from lawyers in trouble, which is understandable--I do it myself. But when you hear it time and time again, you just want to say, 'Shut up.' "

But before all that talking begins, most lawyers show up at Fishkin's door clutching The Letter. The Letter is an official notice from the Office of the Chief Trial Counsel of the State Bar of California advising the lawyer of an intent to file formal disciplinary charges, or asking for response to a complaint. Most of these complaints are filed by dissatisfied clients, although some are lodged by opposing counsel or judges. Last year 73,288 complaint forms were downloaded from the State Bar website, which led to 11,739 formal inquiries by the Office of Chief Trial Counsel. Of those, 3,010 advanced to an official investigation.

When an attorney receives The Letter, he already has one pant leg caught in the machinery of the State Bar Court. By then, the prosecutor has made a preliminary investigation of the complaint and deemed it serious enough to pursue.

"Some attorneys will freak out when they get the letter," says Fishkin. "Others will get self-righteous and try to represent themselves. But the best opportunity to close down that investigation is when you get the first letter."

Once he understands the details of a case, Fishkin immediately shifts into beautician mode. He usually sends a two- to four-page letter to the Office of Chief Trial Counsel explaining the circumstances of the dispute and the case law that supports his client. He also includes exhibits, and a two- to four-page letter from the client. If prosecutors decide to drop the case or agree to reduce the charge, the accused lawyer breathes a sigh of relief and considers the $400 an hour he's paid Fishkin money well spent.

But not everyone is so lucky. And if the case doesn't settle, it moves into the State Bar Court system. The accused attorney then faces the maddening prospect of helping to pay for his own prosecution, since annual State Bar dues fund the court.

Should he lose in State Bar Court, the accused lawyer faces a range of disciplinary outcomes, including private or public reproval, probation, suspension for up to three years, and, finally, the nuclear option--disbarment. Cases resulting in disbarment sometimes receive splashy media play, but actually very few California lawyers get disbarred: Last year there were 66 disbarments and summary disbarments. That's about .04 percent of the more than 161,000 practicing attorneys in the state.

Of course, complaints alleging garden-variety misconduct are far more common. In fact, the single most common complaint clients make to the Bar Court is "failure to communicate," which usually involves neglecting to return repeated phone calls or respond to letters inquiring about the status of a case. Close behind is failure to perform legal services for which the attorney is hired. Other common complaints include client trust account violations, client-attorney disputes over business transactions, the unauthorized practice of law (as when a lawyer is suspended, disbarred, or designated to be inactive), and conflicts of interest (representing multiple clients in the same case).

Usually these complaints are lodged against small-time practitioners representing less-than-wealthy clients. These are the easiest fish in the sea to catch, while the sharks in the big firms swim free.

"I think we're overprosecuting little, puny-ass cases while big firms are not being disciplined like they should," says Langford. "The big firms don't get prosecuted because the bar doesn't want to take them on. They're smart and they're well funded."

According to a 2001 State Bar study, small-firm and sole practitioners are indeed disciplined at a higher rate. In one sample, two-thirds of the investigations opened by the bar involved sole practitioners, about one-quarter were for attorneys from firms with ten or fewer lawyers, and just 1 in 20 investigations targeted attorneys from larger firms. But the study concluded that the more frequent investigations of small-firm lawyers were commensurate with the larger number of complaints lodged against them compared to large-firm attorneys, and that there was "no institutional bias."

"It's not that we ignore the large firms," says Chief Trial Counsel Scott Drexel, the bar's lead prosecutor. "At any one time we'll have multiple investigations going against fairly substantial firms. But for the most part, client dissatisfaction with large firms doesn't get reported to us. The larger firms make it right with their clients, and we never hear about it. But if a client calls a sole practitioner and he or she doesn't get back to them, the only place they have to complain is the State Bar."

At the same time, solo and small-firm lawyers often get caught up in the discipline system because they lack the support staff and procedural cross-checks that help keep larger firms out of trouble. And solo and small-firm attorneys tend to take on the types of cases that are more likely to produce disgruntled clients, such as personal injury and family law disputes.

Diane Karpman, a State Bar defense attorney in Beverly Hills, observes, "You never hear someone say, 'Oh, I love my divorce settlement.' "

Every profession has its bad eggs--the cop on the take, the abusive priest, the plagiarizing journalist. But lawyers, as a group, have their own unique set of characteristics. For one thing, they are famously prone to depression. A frequently cited Johns Hopkins University study from 1991 found that among more than 100 occupations surveyed, attorneys topped the list for having major depressive disorders, suffering from depression at a rate 3.6 times higher than the general employed population. Depression can lead to (or, just as often, be caused by) alcohol or drug abuse--problems discipline defense lawyers say underlie many of the cases that come to them.

"You see figures that 20 to 25 percent of lawyers have an alcohol problem," says Langford. "I think it's more like 40 percent. I get people with three or four DUIs who will swear they're not alcoholics."

In a profession that regularly requires putting a happy face on ugly facts, perhaps it's not surprising that some attorneys apply the same tactic to their own misbehavior and wind up in the discipline system. Attorney Samuel C. Bellicini, then of Berkeley, had practiced law for only 29 months when he was hauled before the State Bar in 1993 on misconduct charges in seven client matters, including gambling away nearly $3,000 in misappropriated funds and abandoning a client. Addicted to both alcohol and gambling but unwilling to confront his problems, Bellicini chose to resign from the bar rather than face certain discipline. Losing his law license sent Bellicini into a deep downward spiral. For three days he lived out of his car parked at a pier, drinking and gambling away what little money he could scrounge. Then, finally, in 2001 Bellicini enrolled in a two-year outpatient recovery program at Kaiser and got sober.

"I think the years I spent not practicing law before I got sober did the public a lot of good," Bellicini now acknowledges. "I can only imagine the kind of mischief I might have done if I had kept practicing law."

In 2003 Bellicini hired Fishkin to represent him, and he petitioned the Bar Court for reinstatement. His petition was granted the following year, only to be reversed in 2006 after the State Bar appealed the decision.

"Good news or bad news, Jerry delivered it without any drama, which, later on, I really appreciated," Bellicini remembers. "Right after [the reversal], I was crushed. I couldn't believe this had happened. My first instinct was to start fighting again: Let's do a motion for reconsideration, let's go to the Supreme Court. I was just chomping at the bit. Jerry didn't try to talk me out of it right away, he just listened and let me vent, and we explored a few of the issues I raised. Then he was very candid with me and said, 'If you look at the law on this subject, you'll see that it's probably a loser. So maybe we should just eat this and file another petition for reinstatement in a year.' And that turned out to be the right decision."

Bellicini's second petition for reinstatement was granted last April. Now, he's slated to begin his second law career working as an associate in an office that does discipline defense work. His boss: Jerry Fishkin.

"Sam went all the way down and pulled himself up," observes Fishkin. "You don't see a lot of that in my line of work. So we decided to put our money where our mouth is and put him on the payroll."

In a field of law that has few happy endings, Fishkin takes particular satisfaction in how Bellicini's case turned out. By giving a fallen attorney a second chance, he found that he could work a little magic after all.

Tom McNichol is a contributing writer to California Lawyer.

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