The Supreme Court’s Sensible Shoes

The California Supreme Court has issued its order in response to the State Bar of California’s request for a special assessment of fees.  The Court predictably resisted the State Bar’s request for funding functions that have not directly related to the core mission of discipline.  They did not rule out granting that request under some different set of circumstances, but “in light of the particular set of circumstances facing the State Bar in 2017” such an order was not justified.  The Court encouraged the State Bar to seek “appropriate funding sources apart from the special assessment” to support the non-discipline programs of the State Bar that support public protection, such as the Commission of Judicial Nominees Evaluation, the Center on  Access to Justice, and the California Commission on Access to Justice.  In other words, the Legislature.

sensible-shoes

Any hopes that the Supreme Court would step out of its historically deferential role to the Legislature in State Bar matters were firmly dashed.  The Supreme Court will not step into the role of the permanent funder of the State Bar; it will only act when the Legislature fails to.  This decision exactly follows the path laid down in 1998, right down to appointing Justice Lui to act as special master to oversee the strict application of the funds to discipline functions.  Here there more than a whiff of distrust that the State Bar can order its finances, distrust that certainly seems justified given the recent history money games at the State Bar, including the funds raided to the pay for the Los Angeles building and the questionable diversion of funds from the Lawyer Assistance Program to the Client Security Fund.

Now the spotlight turns again to the Legislature to address the long-term issues facing the State Bar, including whether all its various functions would be better discharged if not under the same roof.    In the meantime, we have a cautious decision from the Supreme Court that maintains the status quo.

 

State Bar Money Games Continue

History repeats itself, first as tragedy, second as farce–   Karl Marx

On October 17, 2016, the California Supreme Court appointed Justice Elwood Lui to serve as Special Master in evaluating the request filed by the State Bar of California for an order assessing fees against the members of the State Bar to fund the operations of the State Bar disciplinary system.  Justice Lui is well-qualified for the job, having previously served as Special Master when the Supreme Court ordered the first, and so far, only special assessment,by the Supreme Court, in its 1998 decision In Re Attorney Discipline System.   His appointment does not bode well for the expansive request filed by the State Bar on September 30, 2016.

In that request, the State Bar sought an order funding not only the essential components of the discipline system that were funded in 1998 — the disciplinary prosecutor (the Office of Chief Trial Counsel), the adjudication arm (the State Bar Court) and the office supporting professional competence.  Instead, it sought an order funding all that and more,  State Bar organs that have little or no direct relationship with the discipline system, such as the California Young Lawyers Association, the Center on Access to Justice, the California Commission on Access to Justice, and the Office of Communication.  Moreover, hidden in depths of the 300 pages of appendices supporting the request (but not made public on the State Bar’s website) were a number of questionable expenditures.

Most of us might not have known about these questionable expenditures but for the response filed by Prof.  Robert Fellmeth and the Center for Public Interest Law (CPIL)on October 11, 2016.  More deja vu: Prof.  Fellmeth served as the appointed discipline monitor between 1987 and 1991, when the current discipline system was created.  A brief excerpt from CPIL’s response illuminates the sloppiness of the State Bar’s request:

Even a rudimentary attempt to trace the sources of the Bar’s figures raises some serious red flags. In Table 3 of Appendix F, for example, the Bar states that the total cost of the above-described core disciplinary offices in 2016 was $64,438,000 – but that figure includes $20,779,700 in “Indirect Costs” (32% of the total cost) that are nowhere itemized so the reader can be assured that those indirect costs were properly attributable to those disciplinary units.

Most disturbingly, a portion of these indirect costs – which have been allocated to the core discipline functions and are presumably a part of the Bar’s current Request before the Court – includes $56,300 in expenses for Board of Trustees elections! See Appendix F at page 6, footnote 10; Appendix C- expenditure detail at Cost Center 10005.

Moreover, the Executive Director / Board of Trustees budgets – which are also allocated proportionately to the disciplinary functions under the Bar’s “cost allocation plan” even though they have little impact on the discipline system outside of nominating and appointing the Chief Trial Counsel – include significant and completely unnecessary costs such as an annual $44,500 catering budget for the Board of Trustees, and a $7,400 catering budget for the Executive Director alone. See Appendix F at pages 5-6; and Appendix C (expenditure detail for Cost Centers 10001, 10003)

CPIL’s Amicus Curiae letter dated October 11, 2016, page 6.  The letter goes on to note that no other government agency pays for catering, not even coffee.  Instead, employees are reimbursed for meals taken on duty according to established schedule.  And, of  course, they don’t have elections.

But it is more than sloppiness.  The corporate culture of the State Bar still hasn’t wrapped its head around the fact that it is not a bar association but a government consumer protection agency.   Thus, the rather sudden, transparent  and entirely unconvincing  effort to re-define “public protection” so broadly as to include everything the State Bar does (“Jeepers Creepers.“)

And it never will.   That is why disunification, total or limited by moving the discipline function to a new agency, is absolutely essential.

I finally caught up with Professor Richard Abel’s excellent book “Lawyers On Trial: Understanding Ethical Misconduct.”  Chapter 1 provides a very comprehensive look at lawyer regulation over the last century and its peculiar history in California.  The roots of the dysfunction go far back, much farther back than the 30 years that I am personally familiar with, even to the turn of the last century.   Everything that we are debating now has  been debated before, many, many times.  It won’t be changed by a change in management or even a change in governing structure.

In 1998, California experienced a tragedy when the discipline system shut down after Gov. Wilson’s veto of  the dues bill.   A vital part of the justice system simply ceased operating for six months despite the valiant efforts of State Bar President Marc Adelman and others.  It ceased functioning because the State Legislature was tired of the money games played by the State Bar, including the diversion of funds dedicated to hiring discipline personnel  for purposes having nothing to do with discipline.   There was no trust in the State Bar as an institution.  Now 18 years later, we find ourselves repeating history.  This time the tragedy has become farce as the State Bar struggles to  hold on to its schizophrenic nature,  struggles to placate all of its many “stakeholders” even as the real work of public protection embodied in the Office of Chief Trial Counsel and the State Bar Court drifts while funds for elections and catering are earnestly sought.   As Professor Fellmeth notes, if public protection is defined to include everything, then public protection is not prioritized.

The Supreme Court will undoubtedly fund the essential functions of the discipline system with Justice Lui’s very able assistance.  Once that is done, it will be time to move toward giving the discipline system the true priority and focus that it deserves.  That means separating it from the current structure.

New State Bar President Gets It

This quote caught my eye from new State Bar President Jim Fox’s interview with The Recorder:

And my view is that the role of the bar is not to enhance the business of lawyers, it is to protect the public and to enhance the confidence of the public in the administration of justice. So everything we do should be toward enhancing the administration of justice for the benefit of the public, not for the benefit of lawyers.

Mr. Fox understands that the postulate that disunification means separating the trade association function from the regulatory function is a not really accurate anymore.   There is precious little trade association function left to purge; we can’t even go to Disneyland next year.  The disunification debate has been re-framed as regulatory function versus access-to-justice function.  It is  a clever re-framing but it avoids the real issues.  While there may not be “inherent tension” between them, as asserted by the GITPITF report, they are still much different functions that  have no real relationship to each other.   Lawyers will never trusted to run their own disciplinary apparatus.  And discipline is important work that demands the singular focus of dedicated agencies.

Expansive State Bar Funding Request Rests On Thin Reed

beautiful-red-dragonfly-sit-point-thin-reed-68442256On Friday, September 30, 2016, the State Bar of California submitted its request to the California Supreme Court asking for an order assessing fees against California lawyers to fund the Bar’s operations.  The requests asks for funding of the State Bar’s discipline system, the discipline prosecutors in the Office of Chief Trial Counsel (OCTC), the discipline adjudicators in the State Bar Court, the Office of Probation which monitors suspended lawyers, the Office of Competence, which administers State Bar educational programs, the Office of General Counsel, and the State Bar’s lawyer the State Bar’s Office of Member Records.  These offices all have missions that are directly related to attorney discipline.

The State Bar is also asking for funding for the Commission on Judicial Nominees Evaluation, the Center on Access to Justice, the California Commission on Access to Justice, the California Young Lawyers Association (CYLA) and its Office of Communications.  The work of these offices is not directly related to discipline.  The funding request at its maximum is only slightly less ($280) than the level of recently set by the Legislature ($315;  see Bus. & Prof. Code section 6140.

The primary source of authority for this request is the Supreme Court’s own decision from 1998, In Re Attorney Discipline System (1998) 19 Cal.4th 582.  The Court held in that decision that it could order a special assessment against California lawyers to support the work of the discipline system.  The State Bar had asked the Supreme Court to order an assessment to pay for the discipline system, including OCTC, the State Bar Court, the Office of Probation, the General Counsel’s office and fee arbitration.   The Court granted that request based on its “inherent authority” in the areas of attorney discipline.  The Supreme Court was not asked to fund other State Bar programs beyond those directly dedicated to discipline.  In fact, it appointed a Special Master to oversee the expenditure of the special assessment, to specifically prevent those funds from being spent on anything but direct expenditures for discipline.

The decision in  Attorney Discipline System is bottomed on the Supreme Court’s inherent power to regulate the practice of law “In California, the power to regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powers of the article VI courts. Indeed, every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary. [Citation.] ‘This is necessarily so. An attorney is an officer of the court and whether a person shall be admitted [or disciplined] is a judicial, and not a legislative, question.'” 19 Cal.4th at 592.

There is no doubt that the Court can order attorneys to pay for the discipline system.  But what else is included in “the power to regulate the practice of law”?  Attorney Discipline System doesn’t tell us because it was never at issue.

The State Bar cites to Warden v.  State Bar (1999) 21 Cal.4th 628,  the decision that upheld the MCLE statutes against an equal protection challenged.   The issue was not addressed in Warden, either, and the Bar cites to dicta in Justice Kennard’s dissent for a  proposition not really in dispute,  that the educational standards  of attorneys were within the Court’s purview (“In each state it is the supreme court, with or without the legislative approval, that dictates the standards for education, admission and discipline of attorneys. ” quoting Martineau, The Supreme Court and State Regulation of the Legal Profession (1980-1981) 8 Hastings Const.L.Q. 199, 202.) Moreover,  Martineau was also cited in Attorney Discipline System at 593.  So Warden adds nothing new and it seems to cited solely to make it appear that there is more authority than there is.   There is nothing in Attorney Discipline System or Warden that describes how  far the Court’s power goes,  beyond the suggestion, taken from Brotsky v.  State Bar,  that it includes “many of its other functions” of the State Bar beyond discipline and admissions. Brotsky v. State Bar (1962)57 Cal.2d 287, 300-301.

While Attorney Discipline System is the launch pad for the State Bar’s request, it really depends on the recently promulgated idea that we should adopt a more expansive “proactive” definition of “public protection.” A strong case could be made that the Office of Competence and perhaps some of CYLA’s educational activities, have a close relationship with protecting the public from incompetent practitioners.  But there is no way to stretch any reasonable definition of public protection to include access to justice  programs,  the CYLA, the Center on Access to Justice, and the California Commission on Access to Justice  (see Jeepers Creepers.)

That does not mean that these not worthwhile programs.  It just means that there is only the thinnest authority for Supreme Court action to fund them. Conversely, there is no doubt that the Legislature has the power to fund those programs in the exercise of its inherent power to provide for the general welfare.

If it Supreme Court decides to do so, it will have to go boldly where it has never gone before, or even been asked to go before, and invent that authority largely from whole cloth.  As exciting as the separation of powers confrontation between the Supreme Court and the Assembly has been, it will likely get a whole lot more exciting if the Supreme Court goes there.

scorpions

 

 

 

 

 

 

 

 

Wish You Were Here!

Pages from 75th-Anniversary

San Francisco Lawyers Celebrate the New Integrated Bar 1927

There are many things in life that you don’t appreciate until you no longer have them. The State Bar Annual Meeting may soon be one of those things.  Attendance at the Annual Meeting has apparently declined to the point where some are questioning whether to even keep putting it on.  In the old days, the Annual Meeting was a chance for many, if not most, California lawyers to get together, bond, and pat themselves on the back.  Somewhere in the bowels of the State Bar’s Library lie the bound volumes of the proceedings of these meeting, including a 1930’s State Bar President’s proud boast that the “discipline problem has almost been solved” or words to that effect.

We’ve come a long way and the State Bar Annual Meeting is showing its age at 89. Many important State Bar events still revolve it around it, such as the swearing in of the new board of trustees by the Chief Justice and many important committee meetings, like the Rules Revision Commission meeting I sat in on for a short time today.   But most California lawyers are there for the MCLE programs, which continue to be excellent, at least in my little patch of legal ethics, and maybe a chance to enjoy themselves.  This year’s annual meeting is in my hometown of San Diego and occupied most of one harborside hotel.  By contrast, the Annual Meeting I attended here in 1997  required much of the convention center and two large hotels.  For the first time this year, the MCLE programs were streamed over the internets, a concession to modernity that might hasten the Annual Meeting’s decline.

The President’s Luau was canceled this year under the new State Bar alcohol policy, adopted under pressure from the Assembly Judiciary Committee.  Best not to look too much like a trade association, like a bunch of cartoon conventioneers in funny hats gulping champagne or whatever.  Whether the State Bar is formally disunified or not, it is consciously purging itself of much that smacks of a bar association.

It is clear most lawyers don’t really understand what is going on.  I conducted an informal survey of a score or so of lawyers at the State Bar about the current controversy over disunification of the State Bar.  Only about half of the lawyers I talked to said that they were following it closely.  The vast majority, about 90%, supported continuing the unified bar.  Which is to be expected.

It was a beautiful day in San Diego today.  I tried to appreciate the Annual Meeting today for what it is still is, a chance to stroll around and run into old colleagues, friends and make some new acquaintances. A chance to enjoy some comradery and learn from each other.  There is still a place for that in our profession.

 

Compromise on State Bar Disunification?

state-bar-seal

As we wait to see how the California Supreme Court reacts to the State Bar’s request for a special assessment to fund its operations, it is worth considering a possible compromise between complete deunifcation of the State Bar and the status quo: carving out just the discipline components of the State Bar, the Office of Chief Trial Counsel and State Bar Court, as independent entities within the judicial branch. Maintain the unified State Bar of California for everything else. No more question about whether lawyers have their thumb on the scale when it comes to discipline and the State Bar continues to do its good work on access to justice issues. It seems like such an obvious solution that you have to ask yourself why anyone would be against it.