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The State Bar provided its report on October 28, 2022. In this section, we summarize the key components of the report: (1) new case processing standards, (2) the establishment of a backlog goal and metrics for measuring it, and (3) a staffing analysis.
Proposes Backlog Goal of 10 Percent or Less. The State Bar proposes defining an appropriate backlog goal of 10 percent or fewer cases. According to the State Bar, this means that no more than 10 percent of cases should be in backlog status at any time.
Defers Comprehensive Staffing Analysis to 2023. Senate Bill 211 required that the State Bar provide a staffing analysis to identify the resources needed to achieve the proposed case processing standards. The State Bar states that a comprehensive final staffing study will be deferred and instead initiated in 2023. The reasons for this delay are to incorporate legislative direction on the proposed case processing standards as well as various OCTC operational changes that are currently in progress or are being considered. Examples of such operational changes include:
The State Bar indicates that the comprehensive staffing analysis will consider a range of factors. These include: risk and complexity to ensure that different cases receive case weights; staffing needs, responsibilities, and expertise (such as the impact experience, turnover, and training has on workload processing speed and the amount of time available for work); the appropriate ratios of staff types (such as attorneys versus administrative support staff); and the allocation of staff time across complaint types and case processing activities.
Case Processing Standards Do Not Reflect Full OCTC Workload. Both the existing statutory time frames and the proposed case processing standards do not reflect full OCTC workload. Specifically, the case processing standards do not include the Hearing Stage in which OCTC staff engage in activities to prosecute and resolve cases in SBC. Such a metric would be helpful to capture how long it takes to resolves cases generally. For example, DCA includes a formal discipline performance benchmark of 540 days from the complaint receipt through the completion of the entire disciplinary process for cases that are forwarded to the Attorney General for disciplinary proceedings (including intake and investigation).
OCTC should not be solely responsible for achieving a particular time standard as case processing in the Hearing Stage requires coordination with SBC and accused attorneys. However, OCTC is a key participant whose actions will impact the overall ability to effectively resolve cases in the Hearing Stage. As such, OCTC should continue to monitor and to improve the efficacy and efficiency of its actions in this stage. A time standard would provide an expectation for how long it should take to resolve those cases that may result in the most severe disciplinary actions. This serves as a benchmark to measure against actual completion times. In combination with other reporting requirements, the State Bar and Legislature would be better positioned to monitor and identify the particular areas where delays are occurring or where operational, procedural, or staffing changes could improve case processing efficiency or quality.
What Data and Metrics Are Needed to Conduct Legislative Oversight The Legislature will want to consider what specific data and metrics should be required by state law in the annual discipline report to enable effective legislative oversight. The State Bar completed implementation of a new case management system in 2019 that captures more case processing information. As such, more data is potentially available for reporting. In developing such metrics, the Legislature will want to consider what level of detail is necessary to comprehensively and accurately assess disciplinary workload and processing. For example, the Legislature could include some of the statutory reporting requirements related to DCA licensing cases referred to DOJ for prosecution. Additionally, the Legislature could place requirements on the State Bar to ensure that data is being pulled and reported consistently and accurately from year to year. Clearly specifying specific data and metrics, as well as other requirements (such as requiring descriptions of any changes in methodology in pulling and reporting data or prohibiting such changes without legislative approval) will ensure the State Bar consistently and accurately reports the information desired by the Legislature. Such metrics would help the Legislature to conduct meaningful and consistent oversight of the disciplinary process, hold the State Bar accountable for its performance, and identify potential areas of improvement or concern.
Good Reasons Why Cases May Remain Pending. There may be good reasons why cases remain pending. For example, some cases may be deferred pending resolution of criminal or civil cases. Some cases may also be deferred, or take longer to resolve, if OCTC is already pursuing serious discipline against an accused attorney or if numerous complaints are being assessed to see if OCTC can establish a case that there has been gross negligence or a pattern of repeated failures to provide competent service. According to the State Bar, one of the attorney discipline expert consultants raised concern that deferral was overused and that OCTC is developing guidelines for case deferral. Appropriate backlog metrics should separately categorize workload that is pending for valid, clearly understandable reasons and those that are not.
How Should Backlog Be Defined and Calculated The Legislature will want to consider what is an appropriate backlog definition. The Legislature could restore the definition used previously or develop new ones. For example, the Legislature could define backlog to constitute cases that were pending after 300 days without case closure, admonishment, or filing of charges from date of receipt. (This is the time proposed by the State Bar by which 90 percent of cases that reach the Charging Stage should either be closed or result in the filing of charges.) At minimum, we recommend the Legislature focus this definition on pending workload so that it can monitor OCTC workload in a comprehensive and timely manner. It is also important to define how backlog should be calculated. For example, the Legislature could exclude cases deferred for valid reasons from the calculation of backlog. This would mean that the backlog metric would only reflect those cases for which there is a lack of resources or no valid reason for delay. We note that the criteria for deferral would be important in this situation and could merit legislative consideration as well.
Workload Formula Needs Revision. The workload formula will need to be revised to reflect all operational and procedural changes that have, or will be, implemented since the formula was adopted in 2018. As we raised in our 2019 report, the resulting case weights should capture the amount of time actually needed to process cases within the proposed case processing time periods rather than actual processing times reflected in data. (We note that the workload formula actually captures all OCTC activities, including workload associated after charges are filed in the Hearing Stage.) This is even more important given that available data does not reflect the impacts of changes that have recently, or will need to be implemented. For the same reasons, the State Bar should also be cautious of using relationships identified in historical data in the workload formula.
As we previously reported in 2019, different case weights may be needed for different complaint types or priority categories to the extent that they require different levels or combinations of disciplinary tasks. For example, expedited cases move more quickly because certain investigatory or other tasks are omitted which means less staff work is required. At the same time, the expeditor team requires more investigators than attorneys to meet internal benchmarks for such cases. It is unknown at this time whether more cases will be handled in an expedited manner to meet the proposed case processing time standards. We note that the State Bar subsequently identified that there were differences between the resources allocated to process particular case types. Additionally, analysis could be merited regarding whether investigator and attorney responsibilities are sufficiently different to merit separate case weights.
When Should a Comprehensive Staffing Analysis Be Conducted The Legislature will want to consider when the State Bar should conduct a comprehensive staffing analysis. Given that various operational and procedural changes may be forthcoming, the analysis would be the most accurate and helpful if it was delayed until after the full impacts of those changes on staffing and resource needs were realized. We think potentially delaying the staffing analysis further to 2024 or 2025 would allow for the preliminary impacts of such changes to be observed and incorporated into the analysis. The analysis could then be updated in 2028 or 2029 to reflect the full impacts of such changes. At the same time, we recognize that it would be difficult to determine what level of additional resources would be justified without an updated study.
Pursuant to state law, the State Bar submitted a report to our office for review which proposes new caseload processing standards for resolving attorney discipline cases within OCTC, the establishment of a backlog goal and metrics to measure such a goal, and the staffing requirements needed to achieve the new standards. We generally found some portions of the report reasonable, but also identified concerns with other portions. Based on our review, we also identified a series of key questions for legislative consideration to assist with any future decisions. 59ce067264
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