Jeepers Creepers

circle-the-wagons

The State Bar of California is preparing its request to the California Supreme Court asking for a special assessment to fund its operations.  Unlike 1998, the first time the State Bar had to appeal to the high Court, that request will ask for funds for more than the discipline system,  funds “ at a level necessary to ensure the full operation of the State Bar’s public protection functions, including the disciplinary system.

Additional programs that the State Bar will seek to maintain are the Commission on Judicial Nominees Evaluation (assisting with the evaluation of judges), the Center and Commission on Access to Justice (working to expand access to justice for all and improving the quality of legal services); the California Young Lawyers Association (educating attorneys and the public and encouraging pro bono opportunities for lawyer); and the Office of Communications (educating attorneys and the public).

In 1998, the California Supreme Court appointed a special master to oversee spending the special assessment to assure that those funds would be spent only the discipline system (I filed an amicus brief urging the appointment of a special master for that very purpose.)  Part of the reason the Legislature  could not agree on a fee bill in 1998 was a profound level of distrust based in part of the revelation that funds intended to pay for discipline staff had been diverted for non-discipline purposes.

That problem has been solved by the broad re-definition of public protection.   Despite the State Bar’s well-documented  history of “mission creep and organizational incoherence”   (Governance in the Public Interest Task Force August 2016 report, page 15) the response to the deunification  threat is to circle the wagons to the point of arguing that public protection includes even funding the State Bar’s public relations apparatus.

Access to justice is an important issue and certainly within the  ambit of the judicial branch.  There is a fear, not an irrational one, that lawyers will not voluntarily support access to justice efforts, at least financially.  Without a doubt, the Commission on Judicial Nominees Evaluation serves an important function that is in the public interest.   There is no reason these important functions must exist organizationally with the discipline system.   There is every reason to think the discipline system would function better freed of the organizational incoherence of being part of a State Bar that strives to be all things to all stakeholders.

The Supreme Court probably will, at some point, support a solution to this organizational incoherence.   That  may mean the creation of more bureaucratic infrastructure in the Judicial Branch that the Supreme Court is comfortable with.   The State Bar has functioned well as means for the  Supreme Court to keep a number of issues at arm’s length,  not only the nitty-gritty work of the discipline system but difficult political questions such as how much power it really has  to compel lawyers to contribute money  to fund access to justice.

There little, however, in In Re Attorney Discipline System that states a basis for funding anything other than the discipline system, just a few words from Brotsky v. State Bar regarding the State Bar’s sui generis nature as an arm of the State Bar in disciplinary matters “and in many of its other functions.”  No other authority is cited in the Office of General Counsel’s memo to the State Bar  Board of Trustees.  To grant the State Bar’s expansive request, the Court is going to have to ponder whether its inherent powers to assess fees really stretch so far, given that it does not have the power to levy taxes, reserved to Legislature under  Article III, section 3.

In the short run,  the Supreme Court wants to maintain the status quo, probably hoping that mission creep and organizational incoherence are resolved as much as possible by the bar itself and the Legislature, without jeopardizing important interests like access to justice.  That seems optimistic,given recent history.

That seems optimistic.   The appointment of a discipline monitor isn’t  going to restore trust in a discipline system perceived to be run by lawyers.   The discipline system will never operate an effectively as needs as long as mired in an incoherent State Bar structure.    Removing the discipline function while preserving an integrated bar for other purposes is one possible solution that the Supreme Court can lay the foundation for with its decision on the State Bar’s request.

 

 

 

 

 

“The Night Of” the On-Screen Lawyers

Finished with “The  Night Of” and disappointed at the conclusion.  It set up some very interesting characters,  especially seedy lawyer Jack Stone,  world-weary prosecutor Helen Weiss, enigmatic detective Sgt. Box, and saturnine inmate king Freddy,  But the series squandered its promise in inept courtroom scenes and an implausible ending that might have come from Frank Capra.

I’m not the only one disappointed in this series.  One observer, citing the numerous ethical lapses on the part of all the lawyers involved in the story, observed that “virtually all TV and film involving lawyers portrays them as the essence of evil or foolishness. ”

That  may be true now but it wasn’t always  so.  Unsavory lawyers go back to Dickens and earlier but for a brief period within living memory, films and television had many positive portrayals of lawyers.  This era seems to have begun in the late 1950’s and run its course until the Watergate era.  Raymond Burr’s “Perry Mason” probably doesn’t count since he really wasn’t a lawyer but within a few short years we had  Jimmy Stewart’s conscientious Paul  Biegler in “Anatomy of  Murder” (1959),  Charles Laughton’s stylish Sir Wilfred Roberts in “Witness for the Prosecution (1957),  Gregory Peck’s saintly Atticus Finch in “To Kill a Mockingbird” (1962),  and E.G. Marshall in “The Defenders” as Lawrence Preston between 1961-1965.  Jose Ferer’s Barney Greenwald in “The Caine Mutiny”  (1954) doesn’t quite fit the seeming trend of positive lawyer images;  Greenwald has no hesitation about torpedoing Captain Queeg even if he feels rotten about it.  Andy Griffith folksy  “Matlock” (1986-1995) would seem to work against this idea, but it always felt it was about Andy Griffith, rather than lawyering.  When you consider such bleak works as “And Justice For All” (1979) and “The Verdict” (1981), it’s hard not to see the beginning of trend toward rather dark images of lawyers in film and TV  beginning in the late 1970’s, despite possible outliers like Matlock, Tom Cruise’s Lt. Kaffee in “A Few Food Men” (1992).  I would argue the  “LA Law” (1986-1994) and most of its progeny, including David E. Kelley’s oeuvre,  fits firmly within this growing trend toward “evil or foolishness”.

Of all the positive portrayals of lawyers during this brief era of good feeling, perhaps none is so little remembered now or so lightly regarded then as the short -lived  series “The Young Lawyers” which ran from 1969-1971, on ABC, naturally.  Earnest young idealistic lawyers serving justice by working at the Neighborhood Legal Office.  Pre-Watergate, pre-Bates v. Arizona, just at the beginning of the Golden Age of Lawyering.  Obviously pitched toward the evanescent youth market, it was just a  little  too earnest to be terribly interesting.   From our perspective, the most interesting part is that enough people found it sufficiently interesting to keep  on the air for three seasons.  Many young lawyers in real life were working in similar circumstances to earnestly help people, and many of the young lawyers continued to do so even to  this day.  But the public’s attention moved on. l

But the public’s attention moved on. Unfortunately, evil and foolishness usually create more dramatic possibilities than good works and the fight for  justice. Real events involving lawyers at the highest level soon provided drama that far outstripped any mere fiction.   Massive growth in number of  lawyers,the unprecedented growth in lawyer income, both facets of the commodification of the law business,  obscured the idealism that still motivates many lawyers.

I don’t expect to see the 21st century’s Atticus Finch on the screen anytime soon.  We have all gotten too cynical for that.  There is room for stories with heroes and lawyers can be heroes, too.  “The Night Of” strained for some heroic moments in Jack Stone’s seeming transformation into Clarence Darrow  but it just didn’t seem real after all the effort to make him pathetic.   Weiss’s moment of seeming redemption at the end seemed just as false.  I applaud that effort but note the third lawyer involved is in the Khan case is effectively damned beyond redemption, a victim of in the series most exploitative and disappointing sub plot.

Still, in an era where hundreds of television series are created a year, it’s entirely possible that we might be surprised with with a great positive lawyer movie or TV series, our equivalent of “Anatomy of a Murder” “The Defenders”  or even “The Young Lawyers.”  Something you could not anticipate.

Stranger Things have happened.

 

 

 

 

 

 

 

State Bar: Situation Normal

The California Legislature has adjourned without passing a bill authorizing the State Bar of California to assess fees against its members.   The spotlight now shifts to the California Supreme Court, which will be asked to order a special assessment of fees as it did in 1998 after the Legislature was unable to reach agreement on a fee bill in the wake of Governor Wilson’s veto of the fee bill in 1997.  There is still a chance that both Houses could reach agreement and pass urgency legislation when they come back into session in December 2016, as they did after Governor Schwarznegger vetoed the fee bill in 2009.  But the issues that must be bridged are much, much deeper than they were then

One might be forgiven for yawning.  For the troubled dysfunctional institution that is the State Bar of California, chaos and uncertainly have become situation normal.   The 30+ year history of dysfunction has been well documented in all its many facets.  It is hard to think of another vital government function that has been through such a turbulent history.   As GITPITF asked in its last report:  “what explains the inability over many years to resolve clearly identified on-going concerns?”

Part of the answer lies in the contradictory nature of legal profession.  Most lawyers now are private actors in  capitalist economy, delivering a commodity called legal services for a fee.  Traditionally, though, lawyers were regarded as at least quasi-government officials who, in the beginning and for many centuries were actually forbidden from receiving fees (as noted by Mary Beard in her excellent book on ancient Rome, the cradle of our legal system, SPQR).  Their cause was justice; accepting money sullies it.  This tradition girds the rather complex system of ethical rules that the State Bar enforces, as well as the idea that these quasi-governmental officials still have a obligation to provide that at least some of that commodity for free (see ABA Model Rule 6.1. )  Part of the disagreement between the Assembly and the Supreme Court is the extent to which the State Bar (or whatever might succeed it) should focus on its role as a government regulator of the providers of this commodity, or whether it should embrace the broader, older vision of the self-policing guardians of justice.

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Thus the debate over how expansive the definition of “public protection” should be.  Senate Bill 846, the Senate’s ultimately unsuccessful answer to Assembly Bill 2878,  would have amended the Business and Professions Code to add new section 6001.1 to define “public protection” as

6001.1. (a) Protection of the public shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever While the State Bar has jurisdiction over a broad array of important legal functions, whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
(b) Because protection of the public requires that legal services are provided in a competent, accessible, and ethical manner and that the judicial system functions in a fair, impartial, and just manner, protection of the public is defined as the core regulatory function of the State Bar in the following order of priority:
(1) Attorneys shall be competent and ethical and comply with all state and federal laws, as well as all standards of professional conduct developed by the State Bar.
(2) Appropriate discipline shall be imposed upon attorneys who fail to comply with those standards and appropriate legal sanctions shall be imposed upon nonattorneys who attempt to practice law without a license.
(3) Competent and professional legal services shall be equally available and delivered without regard to income.
(4) The legal profession shall represent the broad diversity of California.

By contrast,  the other ultimately unsuccessful fee bill AB 2878 was amended to remove similar language:

SEC. 2.Section 6001.1 of the Business and Professions Code is amended to read:

(a)Protection of the public shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.

(b)Protection of the public requires that professional legal services are provided in a competent, accessible, and ethical manner and that the judicial system functions in a fair, impartial, and just manner. For purposes of staffing and resource allocations, protection of the public is defined as the following core functions of the State Bar in the following order of priority:

(1)Administration of the bar admissions and law school accreditation processes, recordkeeping and licensing functions, and the lawyer discipline system.

(2)Administration of programs that advance professional competence and ethics, support the prevention of discipline problems before they occur, address the unlawful practice of law, and support the judicial selection process.

 (3)Administration of programs that support the fair and equal administration of justice, effective functioning of the legal system, and diversity of the profession.
The Supreme Court very much wants to keep the State Bar in the business of delivering justice, as opposed to merely regulating the providers of legal services.  The problem is that this expansive definition allows the State Bar endless opportunities to engage in “mission creep” at the expense of losing focus on the core function of regulation.  But that is exactly what some “stakeholders” want: the paternalistic vision of the original unified State Bar of California that could do just about anything “pertaining to he advancement of the science of jurisprudence or to the advancement of the administration of justice” in the charmingly naive language of Business and Professions Code section 6031, which also finds no contradiction in including within that definition “all matters that may advance the professional interests of the members of the State Bar”.  Trust us, we’re lawyers!
It is hard to see how this schism can be ever be bridged.  Former Executive Director of the State Bar Bob Hawley, who knows more about this peculiar institution than any other person in earth, doesn’t think it can be.  He may be right; if so, we will just have to live with it.

 

Supreme Court Steps From The Shadows in Battle Over the State Bar

Cal Supreme Court

Something truly unprecedented is going on now in Sacramento — a bare knuckle brawl over the future of the State Bar between the California Supreme Court, and its supporters in the State Senate, and the State Assembly.  The battleground for the brawl is the annual bill authorizing the State Bar to assess its operating fees from the members of the State Bar — this year it is AB 2878.  Originally rejected by Assembly by a vote of 50-10, it was amended to provide for a public member majority Board of Trustees and the appointment of a Commission to look yet again at the question,  So amended, it was reported out of the Assembly on a vote of 79 to 0.

Only to meet a buzzsaw in State Senate, in the person of Senator Hannah Beth-Jackson, who stripped out these two key provisions from AB 2878.  Just to make things more confusing, the State Assembly then conjured up a competing bill from the shell of SB 846, which also dropped the provision for a majority public member Board and the idea of new governance commission. As widely reported, these were provisions opposed by the Chief Justice (and presumably) the Court as a whole.

All this remarkable enough.  But extraordinary in my view is very public role played by the Chief Justice in speaking out against AB 2878.  The California Supreme Court is highly involved in the discipline system;  the State Bar is, after all, its administrative arm for discipline and admissions.  In the past, it has always worked behind the curtain, obscuring its role, unbound, as a co-equal branch of government, to the open meeting laws, the Legislature has decreed for itself, and its creatures, most recently he Legislatively-created State Bar of California.  Now, in the person of our formidable Chief Justice Tani Cantil Sakauye, the Supreme Court is stepping up to battle in a way so public as to garner a very grateful “thank you” from the State Bar’s Executive Director Elizabeth Parker.

How will the Assembly react to SB 846?  Plans are underway for the real possibility that there will be no dues bill this year and the Supreme Court will have to order members of the State Bar to pay a fee to the State Bar to continue its operations, just as it did in 1998 with its decision in In Re Attorney Discipline System.  In 1998, the Court dithered even after State Bar staff was laid off and even after the Legislature adjourned without passing a dues bill at the end of August 1998.  That will not happen this time.  And in asserting its independence from at least one house of the Legislature, what other avenues might the Court explore with its plenary power in this area?

TaniCantilSakauye

Cantil- Sakauye

Quoting Senator Joe Dunn is probably not the most politic of moves, but right now, it looks like we really do have a new sheriff in town:  our Chief Justice.

GITPITF Confronts The Gordian Knot and Flinches

Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811)

Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811)

The State Bar’s Governance in the Public Interest Task Force (GITPITF) has issued its final report on the state of the State Bar.

Two reports actually, a majority report and minority report.  And they could not be more different.

The majority report is an encyclopedic survey of State Bar history and culture that contains enough State Bar arcana to satisfy even the most inside of  insiders.  The overall effect is to confirm that the State Bar is a complicated mess of separate programs, separate funding mechanisms, different management and support structures and a governing structure that is not up to managing this tangled mess.

The  majority report asks the  right question (at page 6):  “what explains the inability over many years to resolve clearly identified on-going concerns? ”  But it doesn’t really try to answer it beyond outlining the dimensions of this Gordian knot. The majority (and the minority) recognize that the real change at the State Bar involves political determinations that can only be made by the Legislature and the Supreme Court.  There is an useful compendium of issues that need to be considered but no final recommendations beyond some fairly incremental and revealing changes.

The minority report  is something else again, a cri de cœur that seeks the very heart of the problem in the fundemental conflict between the roles of the State Bar as trade association and  as government regulator.  This conflict can only be solved by dis-unification.  The minority advocates for this solution and doing it in blunt and emotional terms.

In part that might be because  the majority are,  in their dry way, advocating against disunification, even as they acknowledge (at page 25) that “a gowing body of thought posits that coupling regulatory and trade associational functions in one organization weakens both and serves neither the public nor the legal profession well.” The majority then spends a couple pages throwing as much cold  water as it can on the dis-unification concept before concluding that the “new approaches now underway a chance to bear fruit first before deciding whether to embark on the large and uncertain change that de-unification would represent”  at the bottom of page  27.

Of course, it is appropriate to look at the downside of disunification.  But the cold water that the majority seeks to use to douse disunification fever is cool at best.  The majority seems to imply that the Calfornia bar’s large size and uniquely complicated structure make disunification problematical.  In fact, it is that uniquely complicated structure,  the result of decades of “missions creep” as various “stakeholders” grafted their causes on to the State Bar (see page 15) that compels disunification.   Indeed, the majority itself makes the case for disunification:

Successful mission execution depends on clarity of structure, function and governance; unless these three are well-aligned, routine business operations, let alone organizational reform efforts, are difficult if not impossible to achieve. Historically the State Bar has been a blend of two very different business models: an independent government regulatory body and a professional membership association. There is an inherent tension manifested in this duality which can be seen in a number of ways.

The measures proposed by the majority acknowledge this truth but back away from the obvious implication that, in light of decades of  dysfunction and decades of  discussion of that dysfunction, only disunification can bring about necessary clarity to this mess.

One recommendation adopted with only a dissenting vote is for the appointment of limited term discipline monitor.  This concept was tried before when Prof. Robert Fellmeth of  the Center for Public Interest Law (CPIL) served the Legislatively appointed discipline monitor between 1987 and 1993.  Prof. Fellmeth’s job was both to make recommendations and monitor the  implementation of those recommendations.  It is unclear from the majority’s recommendation exactly how broad the powers of this monitor would be.   The recommendation itself is a frank acknowledgement of the lack of trust the Legislature and others have in both the State Bar’s management of the discipline system and the information reported by the State Bar about the discipline system.  Presumbly, the discipline monitor would verify that the “new approaches” are working.

The other big change is yet another governance change to the Board of Trustees to  eliminate Trustees elected by the members of the  State Bar, and move to a Board  entirely appointed by the three branches of  government.  The hope  is that eliminating elections will finalize send the message that this  is not a “bar association” but a government agency and bolster public  confidence in the State Bar.  It is step long overdue.  Bar “democracy” has long been a joke anyway  because of low turnout in Trustee elections,  with the concommitant problem that small factions of local lawyers, like the notorious “Breakfast Club” more or less control who gets elected.  As inside  the State Bar as the majority report is,  the minority report goes even more inside in  decrying the baleful influence of “the Los Angeles delegation” (Minority report at page 11.)   Appointed members and other governance changes are intended to remove State Bar  politics from the Trustees agenda.

The concept of a public member majority, as proposed in the Assembly version of the fee bill currently stewing in the Senate, is no where in sight.  And given the Supreme Court’ recently announced opposition to  a majority public member board, that certainly seems politic.

Beyond this we have common sense management reforms (pages 28-30) and the perennial call for better Trustee orientation and training.  The majority understand (at page 29) that “here is a need for the Bar to operate as a coherent, consistent organization” but they place their hope for that in incremental solutions.

The majority is content to  continue to pull at the threads of the Gordian knot in the hopes that we can make it somewhat less confused and more focused.   The minority emotionally advocates striking directly at the root of the problem.  The two reports roughly mirror the current discussion that must be going on even now among the Assembly, the Senate, the Supreme Court and the Governor.   My sympathies are with the minority;  nothing less than major surgery is going to create the “coherent consistent organization” capable of discharging the public protection mission of the discipline system to the degree the citizens of California deserve.

But just as importantly, nothing but major surgery to separate these conjoined twins will free California lawyers to advocate in their own interest.  This important point isn’t addressed by the majority, except peripherally in referencing the idea that a unified bar is necessary to keep California lawyers interested in providing legal services to the disadvantaged.

GITPITF’s final gasp is comes as we  have reached the endpoint of State Bar’s naval gazing, that now the battle has shifted the other significant axis of dysfunction, divided responsibility of lawyer regulation, the conflict between the California Supreme Court and the Legislature, a battle that has  now come out into the open.  Important political decisions have to be made about who is in control.  There is no indication that those  decisions will be made anytime soon.

 

 

Remembering Michael Wine

The small world of California discipline lost one of its most liked and respected members with the untimely death of Michael Wine this last weekend.Scan160607112915Many of us met Michael when he served as a judge pro tem of the State Bar Court in the early 1990s.  Michael left the Court and became a discipline defense lawyer and a founding member of the Association of Discipline Defense Counsel.  Later, his leadership skills would lead him to become President of that organization. He was smart,  funny and worked hard for his clients.  Michael got along with everybody, even Deputy Trial Counsel.  A graduate of UCLA Law School, he was a lifelong Bruin and attended UCLA sporting events with Bruins from both sides of the discipline world.   He was also a truly devoted to his home team, the LA Dodgers.  Michael was my colleague and my friend, and I (and many others) will miss him dearly.