San Francisco attorney Jonathan Arons, who represented Garcia before the bar, said even less about her case. But as a member of the small fraternity of lawyers who defend their brethren in discipline cases, he contends the bar has of late taken a tougher approach. He traces the trend to a state Supreme Court ruling in 2005 in the case of a Pacific Palisades lawyer.
The court disbarred Ron Silverton in 1975 following his conviction on fraud and conspiracy charges in an insurance scam. Unlike other states, California lacks a permanent disbarment statute; attorneys who lose their license can apply for reinstatement after five years. Silverton gained re-entry to the bar in 1992, but new allegations of misconduct surfaced in 2003, with clients alleging that he had charged exorbitant fees and siphoned settlement money. In disbarring him a second time, the Supreme Court chastised the bar for straying too far from sanctioning guidelines.
Gary Aagaard
Jake Poehls
"Too many lawyers get away with bad behavior," says legal ethics attorney Richard Zitrin.
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Arons accuses bar prosecutors of reacting to the ruling in the extreme, pushing for the harshest sanctions possible without regard for an individual's circumstance. "The resolution needs to fit the offense," he says. "It shouldn't be cookie-cutter justice."
Likewise, Walnut Creek lawyer Jerome Fishkin charges that bar prosecutors "have become lazy. They just check a box and ask for the maximum [penalty]."
A former bar prosecutor who moved into private practice 15 years ago, Fishkin offers the example of an attorney disciplined for neglecting a client's case. When the Bar Court imposed a 30-day suspension, prosecutors appealed, demanding the time be doubled. The court obliged, but Fishkin questions the rationale. "They probably spent an extra $100,000 to get 30 more days," he says. "What's the point? Who's really served by that?"
To which Robert Fellmeth says, "People depend on attorneys. When they screw up, there has to be consequences." Fellmeth, head of the Center for Public Interest Law in San Diego, formerly served as the bar's discipline monitor. In that role, he audited the system's performance, and he dismisses defense attorney arguments as so much whining.
"Practicing law is a privilege, not a right," he says. "People — clients — are relying on you. You don't want to see lawyers have their reputations needlessly sullied, but there has to be a safeguarding of consumer interests."
In fact, the California Supreme Court has written that "the purpose of disciplinary proceedings is not to punish the attorney, but to protect the public, to preserve public confidence in the profession and to maintain the highest possible professional standards for attorneys."
Robert Hawley, the bar's deputy executive director, admits to the awkwardness of both shielding consumers and acting as a buffer between lawyers and vindictive ex-clients.
At the same time, he quips, "As long as everyone's complaining, you must be on the right track."
Hawley and Scott Drexel, who heads the chief trial counsel office, deny the bar goes easy on its members. That criticism, if still persistent, has quieted since the agency switched in 1988 from a discipline system filled by volunteers to one staffed by full-salaried professionals. But they concede that, like any bureaucratic body, the agency is limited by budget.
The bar spends $43 million a year on its discipline system, with most of the funds generated through annual membership dues. The money, however, goes to more than investigating and prosecuting cases, covering the costs of the State Bar Court, substance abuse counseling for attorneys, and fee arbitration, among other programs.
As a result, Drexel says, "We're not necessarily interested in prosecuting every tiny technical violation or ethics lapse." But, he quickly adds, "It's a legitimate concern whether attorneys are treated more lightly than they should be."
Lissa Jacobson, angry about her cats, looks back at her legal fiasco and blames herself for sticking with her young attorney. But she also faults Garcia for attempting to turn a lawsuit into an advocacy campaign, and for the $77,000 in sanctions she had to pay. The Supreme Court eventually ordered Garcia to make restitutions to Jacobson, who earns a living as a day trader, but the total will amount to only a few thousand dollars.
Not long after finally extricating herself from Garcia, Jacobson left California. But her financial and psychological wounds remain all too fresh. "I was completely betrayed by the very person who was supposed to be representing me. It's devastating."
