Apr

Apr. 16, 2007
Unorthodox Campaign Arises From Grudge With State Bar
By Amy Yarbrough
Daily Journal Staff Writer

      SAN FRANCISCO - Jeffrey P. Lustman isn't experienced, he's miffed.
      A Los Angeles private investigator running for State Bar Board of Governors, Lustman may be the ultimate outsider candidate. He doesn't practice law these days, and wouldn't want to. As for cases he has litigated, he could almost count those on one hand.
      The self-proclaimed "anti-establishment candidate" was even disciplined last year for sending what some called a threatening - he says "nasty" - letter to three appellate justices.
      Held up to those of his two competitors, Lustman's legal rÃ©sumÃ© looks flimsy - and he's willing to admit it. Experience is not why he's running, he explains, rather the "serious problems" with judges, the attorney discipline system and the bar itself.
      Lustman is vying for one of two open seats in Los Angeles' District 7. Running against him are Michael D. Marcus, a former State Bar Court judge, and James H. Park, of-counsel for Ropers Majeski Kohn & Bentley. In all, there will be elections for four seats on the State Bar's 23-member board of governors. A candidate for a fifth open seat - representing Marin and San Francisco counties - was uncontested.
      In terms of legal experience, Marcus and Park "could probably run circles around me," said Lustman, who supports doing away with mandatory continuing legal education and, if elected, pledges to do his own investigation of the State Bar to "see if it has been defrauding members."
      "I'm not doing this to litigate, I'm doing this to advocate," he said. "I'm not running because I'm experienced. I'm running because I'm ticked."
      Lustman isn't the first unorthodox contender for a seat on the board of governors, and certainly not the first candidate trumpeting reform. Disciplined attorneys, those disbarred and reinstated, even an Emeryville solo practitioner Michael Schmier, who ran in hopes of eliminating unpublished decisions by the California Court of Appeal, have over the years tossed their hats into the ring.
      In 2001, a corporate attorney and so-called "outsider" - a lawyer not active in local bar associations or the organized bar establishment - won one of District 7's two seats. The following year, three more outsiders joined him on the board. All shared a frustration with what they deemed the "bloated bureaucracy" of the bar.
      What makes Lustman's blood boil is the public reproval he received from the bar in August because of his letter, sent to Justices Candace Cooper, Laurence Rubin and Madeleine Flier of the 2nd District Court of Appeal.
      When he lost his discipline case, Lustman received an eye-opening bill for $1,983 - money to recoup the bar's disciplinary costs - which exposed for him a "whopping conflict of interest" on the bar's part. Not only is there no jury system to protect the accused attorneys in serious discipline cases but, he said, the bar has an incentive to find attorneys guilty of misconduct; it helps to recoup their expenses.
      Admitted to the State Bar in December 1995, Lustman represented a plaintiff in a medical malpractice and civil rights case, Shirley Skobin v. County of Los Angeles, the outcome of which compelled him to write to the justices. Lustman said he contacted the bar's ethics hot line twice before sending the letter, but the State Bar Court refused to consider that a mitigating factor in his discipline.
      In the letter, Lustman argued that the Court of Appeal should have reversed a trial court's decision to dismiss one of the defendants, a nursing home, from the case.
      According to a bar discipline document, he also accused the justices of "blatant misrepresentation in an attempt to protect the county," and said he would report them to the Commission on Judicial Performance if they didn't justify their actions to him within three weeks.
      "If you believe that you can stop me by pulling rank, or if the State Bar pulls some threat on me to try and stop me, none of that will work," the document cites Lustman's letter as reading. "Someone has to take a stand on judicial misbehavior and I guess I'm elected."
      Lustman said he plans to do just that should he win a seat on the board.
      Among his campaign promises is advocating for the bar to work with the Commission on Judicial Performance on complaints against bench officers. The two attorney members on the CJP should come from the board of governors, rather than be appointed by the governor, he said, and attorneys' freedom to criticize judges should be made explicit in the Rules of Professional Conduct.
      The State Bar doesn't do enough to stand up for its members, he said, and judges "make things up."
      "The State Bar is just letting judges walk all over the membership," said Lustman, who also wants to eliminate fees in discipline cases.
      Park, one of the two candidates running against Lustman, did not return telephone calls seeking comment. Marcus, who spent six years as judge on the State Bar Court and now works for ADR Services, said the bar shouldn't be getting involved in individual attorneys beefs with judges. Such complaints, he said, should be dealt with by the CJP.
      "It's not the role of the bar to stand up against judges," said Marcus, who believes his years as a State Bar Court judge will be invaluable to the discipline process. "The bar's role is to foster relationships and communication."
      Ronald R. Silverton, a twice-disbarred attorney, ran unsuccessfully for the board of governors in two races on a platform of dismantling the discipline system, mandatory continuing legal education and interest on lawyers trust accounts.
      Silverton says he still believes the discipline system is "rotten" and biased against attorneys. He said many other lawyers seemed to share those opinions when he ran.
      "Most of the attorneys I talked to said, 'you're right, you're right,'" Silverton said. "I guess they just didn't vote."
      Matthew Cavanaugh, a bar critic most associated with the outsider label, was successful in his candidacy and endorsed three other like-minded candidates who subsequently won seats on the board.
      Critical of the State Bar's spending and management, Cavanaugh was never able to get any of his planned reforms through, including one to lower bar dues. Where he failed most, he said, was getting more reform-minded candidates to run for the board.
      "For a short period there, it looked like there was going to be a revolution," said Cavanaugh, who is now chief financial officer with Long Beach-based Intelli-Flex and has little involvement in the State Bar.
      Cavanaugh, who does not know Lustman, said it's good he's trying to shake things up, but doubts he'll be elected. Voters want candidates with a lot of experience, he pointed out. Though he ran as a bar outsider, Cavanaugh said he was in the mainstream.
      "It was a very different insurgency, than this guy's," he added. "Our candidacies had nothing to do with our personal issues. It's that we felt that the bar was mismanaged."
      Stephen R. Barnett, a Boalt Hall professor and a longtime bar skeptic, challenged the bar's election procedures, which ultimately led to an agreement to allow candidates to state their positions in ballot materials. Barnett wasn't quite so successful in snaring a seat on the board in 2002; he lost to Vivian Kral, a Redwood City sole practitioner with a long history of bar-related activities.
      One of Barnett's goals was to increase democracy in the organization. These days, he said, dissent on the board is much quieter.
      "I must say the criticism has died down somewhat," he said. "Maybe it will flare up again."