Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Jerome Fishkin is all about protecting the rights of his fellow lawyers and is nearly giddy discussing Feb. 23, 2004 — “the best day” of his career. That was when the 35-year counselor from San Francisco won a California Supreme Court case establishing that — absent misconduct — attorneys don’t forfeit payment for legal services even if they fail to get a client’s consent to split fees with another firm. “The long-run value of [that ruling],” he says, “is that if you do the work, you’re not going to lose your fee. It’s important for me that when attorneys do the work, they get paid for it.” Even more important to Fishkin, however, is ensuring that individual attorneys get a fair shake from their own profession, which is why for the past 13 years he has specialized in representing lawyers facing misconduct charges filed by the State Bar. It’s a practice that has won his girlfriend/law partner Lindsay Slatter and him wide acclaim among fallen lawyers, prosecutorial adversaries and fellow defense attorneys in the niche world of State Bar defense work. Only about 25 attorneys statewide do that kind of work near or full time, and all are part of a loosely organized Association of Discipline Defense Counsel who e-mail, network, socialize and just plain brainstorm to absolve lawyers of State Bar charges or work to get penalties reduced and give their clients a second chance. It’s a fairly insular world, considering that there are only about 40 State Bar prosecutors on the opposing side and eight State Bar Court judges evenly split between San Francisco and Los Angeles. It has its own discovery, court rules and legal terminology, and, quite often, State Bar prosecutors take their knowledge to start a second career as a State Bar defense lawyer. “Everybody knows everybody,” says Fishkin, a State Bar lawyer for 14 years, seven of them as a prosecutor. “This is like a small-town law practice.” Albeit a small-town practice with a potential clientele from among the state’s more than 200,000 attorneys, any one of whom can find him- or herself accused of bilking clients, misappropriating funds, abusing illegal substances or myriad other inappropriate acts. Business is brisk, and with billing rates averaging $300 to $400 an hour among the specialists, money rolls in. And there’s more than enough work to spread around. “We’re referring out or turning down about 10 cases a month,” says Diane Karpman, a longtime State Bar Court referee who shares a Los Angeles practice with JoAnne Robbins, herself a State Bar Court judge for five years. “I’m to the point of taking no new clients,” Karpman adds. “If someone calls as a personal favor, alright.” One member of the tiny defense bar, Arthur Margolis, who’s partnered with former wife Susan Margolis in L.A.’s Margolis & Margolis, says everyone tends to help each other out. “There’s a constant discussion about what goes on about the law and State Bar defense,” he says. “There’s always communication.” Margolis contacts David Clare of Newport Beach and Erica Tabachnick of Los Angeles. Karpman keeps in touch with Ellen Pansky of South Pasadena and Ellen Peck of Escondido. And then there’s San Francisco’s Ephraim Margolin, who’s been in the business longer than anyone else — 35 years. Attorneys say the work is attractive because it offers a chance to help peers who have gone astray turn their lives around. “Lawyers are fully responsible and sometimes held to almost superhuman standards of performance,” says Slatter, a former civil litigator who handled more than 500 adoptions. “I take pleasure in giving some care to the caretaker.” But the specialty isn’t for everyone. John Quinn, a partner in Arnold & Porter’s L.A. office and a former president of the Los Angeles County Bar Association, says he will defend someone facing State Bar charges “as little as possible.” “I, frankly, find it very difficult because, from a personal standpoint, it’s usually a lawyer who has problems that impact his life very dramatically,” Quinn says. “And the stakes are high. It’s easy to lose somebody’s money, but it’s a lot more difficult to have to save somebody’s future in the profession.” BACKSEAT DRIVING Representing lawyers can pose unique problems. “They’re an attorney,” Robbins says, “so sometimes they feel they know as much as you do in this area of law.” Beverly Hills solo practitioner Theodore Cohen, who specializes in representing attorneys who have substance-abuse problems, says that lawyers “always want to keep sitting there and writing notes to you.” It can reach comic proportions. At a 1997 State Bar Court hearing in San Francisco, now-disbarred lawyer Jerome Berg kept slipping notes to his attorney, Robert Rudolph Jr. When he was handed the third note in 15 minutes, Rudolph angrily crumpled it up and muscled Berg back to his seat. Margolis says the clients run the gamut. “There are those who always have ideas, and most of their ideas aren’t any good at all,” he states. “And then there are those you don’t hear from who you want to hear from. And then there are those who are just right: They’re thinking straight; you can have a rational discussion with them. They’re actually helpful.” But Margolis has more complaints about the State Bar’s prosecutors. A former State Bar prosecutor himself, Margolis has long had a love-hate relationship with his former employers. “It’s become a place permeated with weird personalities,” he says. “They hold attorneys to unreasonable standards that experienced attorneys find appalling. Much of what they insist upon in terms of standards and accusations is just silly.” Margolis says he tries to start out informal, but “if it becomes clear that the prosecutor is just full of him- or herself and is unreasonable, it becomes necessary to take a harder line.” While other defense lawyers admit to a certain edginess with prosecutors at times, most claim civility between the two camps. “I tell them, ‘Your client is the public,’ and it might be in the public’s interest to settle a case,” Robbins says. “If you settle so it saves the respondent money, it saves everyone money and you get to put down conditions that protect the public.” Fishkin and Slatter say the situation requires a good deal of negotiation, with Slatter noting it’s important to “place the conduct in its human and professional context” and to have the client “acknowledge wrongdoing.” Fishkin says there’s “a lot of confidence in the honesty of the regulars” and says he and Margolis — who have high regard for each other — just have different styles. “I’m a noodger and a schmoozer,” Fishkin says. “I call up the prosecutors and say, ‘C’mon, c’mon, you can do better than this.’ Art’s more of a firebrand. It’s more like oil and vinegar.” Donald Steedman, supervising trial counsel for the State Bar, says the relationship with opposing counsel is generally good, but varies depending on the attorney and the case. “I like to work as colleagues and not be fighting over little, trivial things,” he says. “I don’t like to have discovery battles. I like to settle cases.” Steedman singles out Fishkin, whom he worked with in Fishkin’s days as a prosecutor, as the kind of lawyer he appreciates. “What he’ll try and do is not only defend the lawyer and get them a good deal but explain to them what they did wrong and get them to change,” he says. “I’m interested in protecting the public, and sometimes, believe it or not, helping these attorneys turn a corner.” WHERE THEY DRAW THE LINE But not every troubled lawyer can land one of the specialists. Karpman and Robbins won’t represent people who have substance abuse or mental health problems that they won’t try to deal with to some extent on their own. Former California Supreme Court Justice Armand Arabian, a Van Nuys solo practitioner who handles the rare State Bar defendant, refuses to step in if there is a “clear case” of misappropriating funds or stealing from a client. Margolis, an animal-rights advocate, can’t stomach cases involving abuse of dogs, cats or other creatures. Fishkin and Slatter back away from anyone — even law school students — convicted of a serious felony, defendants with unrealistic expectations and anyone they “intuitively don’t like.” “A lot of it has to do with a client’s attitude,” Slatter says. “There are a lot of them who are angry and feel singled out. There are others who feel embarrassed and very uncertain about what to expect. You have to be able to help them understand what the process is, and sometimes you see they can’t face it.” And then there are the cases Fishkin dubs TSTP — “Too Stupid to Prosecute.” These are cases where attorneys do “something really dumb,” he says, such as threatening to report an opponent to the State Bar. “Threatening State Bar discipline for a civil advantage is a violation of the rules,” Slatter points out. So is failing to notify a client that the State Bar can audit their trust accounts — “an off-the-wall thing,” Fishkin says, “that can catch attorneys by surprise.” And then there are the high-profile clients. Margolis represented the late Marvin Mitchelson, a celebrity divorce lawyer, who was seeking reinstatement, as well as O.J. Simpson attorney Barry Scheck, accused of practicing law without a license. Fishkin has worked with former Crosby, Heafey, Roach & May partner Malcolm Wittenberg, disciplined after pleading to insider trading. But many, if not most, are like Cohen’s clients: men and women who have committed improper acts while in the throes of drug or alcohol addiction. “Some of them are sort of bewildered by the memories of what they did,” Cohen says. “Some of them have trouble accepting the terrible things that they did.” That’s where the experts come in, trying to do right by the public while negotiating discipline that won’t completely flush a floundering lawyer down the toilet. “People have committed suicide over State Bar stuff,” Karpman says. “It’s a disciplinarian system based on shame. That’s a profound motivation for attorneys. Because all we have is our reputation.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.