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The State Bar’s top prosecutor is moving ahead with plans to tweak the agency’s prosecutorial system even as Bar leaders review a long-awaited draft report that could radically alter who handles lawyer discipline in California. Chief Trial Counsel Mike Nisperos Jr. confirmed this week that he is testing ideas that could increase efficiency by deciding case by case how to prosecute — with a single prosecutor being involved from inception to conclusion or having a senior attorney do the investigation and then hand off the case later. Or he could do a combination of both. The goal, he said, is to “handle more cases and maintain quality.” Nisperos’ work, however, is being slightly overshadowed by the fact that members of the State Bar Board of Governors have in hand a draft report by a 12-member state Supreme Court task force that could determine the fate of the State Bar’s discipline system. Two years in the making, the report is supposed to evaluate several 2001 proposals by an American Bar Association team, including having the State Bar relinquish its discipline system to the Supreme Court. The ABA team also suggested that Nisperos’ post be filled through appointment by the Supreme Court. The State Bar and Supreme Court requested an outside review in 2000 to examine the flaws and strengths of the discipline system. Mark Jacobson, counsel for the Supreme Court committee that has studied the ABA recommendations, said Tuesday that Bar leaders were given a draft report, with the intention that the contents remain confidential and that the Bar respond with comments and suggestions by the end of October. Comments from the public at large would be sought then, Jacobson said, with the draft going to the Supreme Court eventually for a final decision. Even though there’s no deadline for completion, he said, “there’s some interest in getting it wound up.” State Bar President Anthony “Tony” Capozzi wouldn’t comment on the report other than to call it “a work in progress.” Even though the final report could conceivably shake things up rather drastically, the day-to-day work in Nisperos’ office goes on. And it’s been a busy year, what with the prosecution of Beverly Hills’ Trevor Law Group — the biggest investigation in State Bar history — on charges of abusing the state’s unfair competition law. The firm’s three principal attorneys finally resigned in July, but not before Nisperos had devoted three prosecutors — as well as 43 investigators and support staff — to the case. The prosecution got unusual priority, he said, because of the “amount of damage” the firm was causing by allegedly leveraging unethical settlements out of small businesses. Still, the reallocation of manpower caused the State Bar’s backlog of discipline cases to double from the normal load of 400 to more than 800, Nisperos said. It now stands at about 600, he said, with the office’s 236 prosecutors still working to get things back to normal. But that won’t be easy, Nisperos said, because publicity about the Trevor case has resulted in an increased number of complaints about lawyers. “They say, ‘We read about you in the Trevor case and about what you’ve done, and we have a complaint,’” he said. “The press coverage encouraged people to report.” That makes it all the more important, then, that Nisperos’ office has a good game plan for moving cases along. For a short time, Nisperos said, the office has used the so-called vertical prosecution model — where one lawyer takes a case all the way from investigation through trial — rather than the Bar’s historically horizontal model, where a case was handled by investigators first, a trial division next and then to an attorney for prosecution. “So far,” Nisperos said, “it seems to be slowing [us] down.” For that reason, Nisperos said he’s leaning toward a blended version of both models. He thinks it might be wise to identify cases that a senior attorney can handle through the investigatory phase before handing them off to a less-experienced lawyer for trial. Complex cases, he said, might be left for one lawyer throughout. “The real trick,” he said, “is to recognize which cases those are.” At the same time, Nisperos said, he might re-evaluate the way the office reports data to ensure that there are more appropriate performance measurements for attorneys about such things as what constitutes a reasonable amount of time to devote to an investigation. He wants employees to have “clear direction” about what’s expected of them based on past experiences. Former California Attorney General John Van de Kamp, the State Bar governor who this year heads the board’s regulations, admissions and discipline committee, said the goal is to improve the discipline system. “We’re not talking about junking it,” he said. “This is one of the most important contributions the Bar makes — having a strong discipline process to protect the general public.” As for whether that process should be handed over to the Supreme Court, Van de Kamp would only say that he believes in the old adage that “if it ain’t broke, don’t fix it.” Even so, he remains pragmatic. “Functionally, if [discipline] went to the Supreme Court, I’ve said it would never bother me,” Van de Kamp said. “From a technical sense, it may belong there.”

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