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.Many 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.
The axis of dysfunction that had received the most attention in the recent discussion of The State Bar of California and its future is the “Regulator v. Trade Association” axis.
But there is another axis of dysfunction the State Bar spins upon. That one got its turn in the spotlight this week. It’s the “Legislature v. Supreme Court” axis. Unlike the lawyer regulation planets in other solar systems, ours follows a tortured orbit between the gravitational fields of double star, the Legislature and the high Court. That orbit has never been as tortured as it was this week.
On Tuesday the Assembly overwhelmingly rejected an amended version of the State Bar fee bill AB 2878 by a vote of 88 to 7. That bill would have made only modest changes in the governing structure of the Board of Trustees by eliminating the six Trustee positions that are currently elected by the lawyers of California. This weak bill came after the Chief Justice publicly warned against placing the State Bar on a path to disunification before the Supreme Court got to weigh in on the issue and reportedly much discussion between the Court and Legislature.
Just two days later, with major amendments, the re-tooled AB 2878 passed the Assembly 75 to 0.
The Supreme Court very clearly would like to maintain the unified bar structure that we have now. The stated reason is concern that disunification would lead to less robust efforts to address access to justice issues.
But another reason may be that Supreme Court reluctance to take on a more direct, active and visible role in managing the discipline machinery. This would seem to be a natural corollary of disunification; as proof, consider Bar Trustee Dennis Mangers proposal that Supreme Court assume the task of assessing fees for operation of the discipline system, as it did the last time the Legislature was unable to pass a fee bill.
It’s safe to assume that this suggestion was met with less than enthusiasm by the Chief Justice. We can speculate about the discussions between the Mark Stone and the High Court, as the judicial branch is not subject to the open meeting laws but the weak bill almost certainly reflected the Court’s desire to preserve the status quo as much as possible.
A desire that was decisively rejected by an Assembly that is all riled up by the most recent State Auditor’s report, a rejection that briefly raised the possibility that no fee bill might be passed due to deadline for bills originating in Assembly to be approved. The scramble that followed to amend the bill (oh, to be proverbial fly!) have produced something that Assembly member John Chiu describes as the “bare minimum” needed to avoid committment to a path to disunification. According to The Recorder, these amendments will:
- Reconstitute the bar’s board of trustees to include a majority of non-lawyer members. All actions taken by the board would have to be approved by a majority of those so-called public members. eferring the most controversial issue (disunification) to blue-ribbon committee is a classic way to compromise.
- Create a nine-member Bar Governance Committee, appointed by the chief justice, the governor and legislative leaders, charged with reviewing possible additional governance changes, including de-unification. The committee would report back to the Legislature with recommendations by April 2017.
- Authorize the chief justice to appoint an enforcement program monitor who “shall make his or her highest priority the reform and reengineering of the State Bar’s enforcement program and operations and the improvement of the overall efficiency of the State Bar’s disciplinary system so that the State Bar is successfully and consistently protecting the public.”
- Set new requirements for the bar to pursue complaints about so-called notarios and others accused of practicing law without a license.
- Require the bar to submit to an annual state audit of its financial affairs.
Moving to a majority public member board has been a goal of consumer advocates, including the Center For Public Interest Law. One of surprising aspects of the bll rejected by Assembly was that it left a majority lawyer member board intact and this was probably the principal reason why it was rejected. Like all other professions, lawyers will now regulated by a board with a non-profession majority. The Case of the Rogue Teeth Whiteners fortunately came along at just the right time to provide a convenient hook to hang this change on. Whether this new structure makes a substantial difference in the way discipline operates is open to question but, however optical this change may be, it can only be a good thing. Perhaps it will finally kill off the Fox Guarding the Henhouse meme.
Punting a controversial issue to a blue-ribbon commission is a time honored way to forge compromise. So we will have yet another study of the State Bar, on top of the work now being performed by the last commission (GITPITF.) At least it give us a less unwieldy acronym. This is the comprehensive study that the Chief Justice called for. It is also a firebreak to the prarie fire of disunification, one last chance to put the house in order, to demonstrate that dysfunction axis no. 1 is really a virtue.
UPL enforcment is a Legislative priority that hints at the more expansive role that probably lies in any regulator’s future. Annual audits seem to be obvious given the demonstrated financial mismanagement of recent years.
The appointment of a performance monitor by the California Supreme Court is the most puzzling new development. It calls to mind Prof. Robert Fellmeth’s service as the Legislature’s discipline monitor and architect of the current discipline system in the late 1980’s. It also brings to mind Justice Lui’s service as special master to oversee the spending of Supreme Court special assessment money in 1999. On its face, it seems to fly in the face of the idea that the Supreme Court wants less supervisorial responsibility over the discipline system. The actual extent of the Supreme Court’s direct interaction with the discipline system is unknown because of its exemption from the open meeting laws.
But it may be that what the Court really wants is just less visible supervisorial responsibility. There are contradictions involved in the exercise of its inherent power in this area. Within it sphere the Court exercises all the three familiar functions of the government at large, executive, legislative and judicial. The Court needs to have some distance from the discipline process to carry off that balancing act. But having been thrust more directly into the process by the Supreme Court appointees to the Board created by the last round of governance reform. perhaps the Court realizes that it needs to have a direct role in the discipline system, especially given the structure of the new Board, with its majority of public members. This new position, even temporary as it is, might be a counterweight to what might be seen as a significant shift of power to public members appointed by the political branches.
The Legislation also gives the Supreme Court another significant plum, the power to appoint the President and Vice President of the Board of Trustees from among their appointed members. This will end the elections and associated rituals that eat up about half of an average year for the Board. A most welcome development that moves the State Bar even further away from the appearance of a trade association.
The most significant aspect of the new and improved AB 2878 is that State Bar has avoided disunification, at least for now. And it has because the California Supreme Court doesn’t want it disunified, at least for now. The Court rescued the State Bar, just as did in 1998 with its decision in In Re Attorney Discipline System. But the battle for the shape of legal service regulation now moves to a new phase.
Allusions to the sinking of the Titanic were prominent in our last post on the Assembly Judiciary Committee’s hearing on the State Bar’s annual fee bill. But it may be that allusions to the Lusitania are more apt.
The latest torpedo to hit the State Bar mid-ships comes in the form of the latest State Auditor’s report. The aggressive criticism of this report was so bleak as to make the wider world take notice (“Audit Rips California’s State Bar for Shady Finances and Bloated Salaries” — LA Times May 13, 2016.) Even unflappable State Bar Executive Director Elizabeth Parker was moved to complain about the tone of the report. She hinted at the Committee hearing meeting that she might not have taken the job had she known the parlous state of the vessel she was shipping out on. Now it is looking more and more like she might be the last executive director, tasked with the grim mission of overseeing the dissolution of the State Bar into two different entities.
Perhaps the tone is a bit nasty but the substance of the State Auditor’s report is damning. It suggests that even the arrival of the hyper-competent executive team has made little or no difference in the strange way the State Bar operates. The creation of a non-profit foundation, the nobly titled State Bar Access and Education Foundation, by the former ED, Senator Joe Dunn, seems like the kind of too-clever-by-half move that we might have expected from him, especially when we learn that the Foundation did little or nothing to advance its stated purpose. Most of its funds were spent on unrelated purposes, including $4,800 Sacramento on a dinner related to a California State Fair (we have a State Fair? who knew?) project called A Conversation With Abraham Lincoln, which ate up another $17,300. It is the kind of feel-good project that would naturally appeal to some set of “stakeholders” or another. So much more attractive than the gritty work of actually regulating the profession.
But the news that $14,800 was used to bail out the Foundation in December 2015 without the knowledge or approval of the Board of Trustees deals a serious blow to the idea that the State Bar’s new Executive Team or the Board of Trustees now has a handle on what is going on. Perusing the many charts and diagrams of the State Auditor’s report leads to a well supported impression that the State Bar is Rube Goldberg machine of Byzantine complexity. Figuring out how this organization works (or doesn’t work) is a challenge even for those in charge. That is a natural result of an organizational philosophy devoted to placating “stakeholders” rather the focusing on the core mission.
A Conversation With Abraham Lincoln seems even more galling when we read about the plight of the State Bar’s Client Security Fund, one of the most important public protection programs that the State Bar administers. Every lawyer in California pays $40 to the Fund which compensates clients who have been ripped off by dishonest attorneys. While the party was in full swing at the Citizen’s Hotel, the Fund was running out of money to pay the enormous amount of claims that had been accumulated during the Great Recession, leading to a potential liability of almost $19 million. This had been obvious since 2011 when the number of claims against the Fund began to skyrocket. I recall listening to a fraught appeal from members the Client Security Fund Commission and staff to take action to remedy the problem. But the Board of Trustees did nothing.
Well, not exactly nothing. What they did do is cover up the problem by omitting any mention of it in the State Bar’s financial reports beginning in 2012. What they should have done was go the State Legislature and ask for a greater contribution from the lawyers of California to pay those claims. But they were afraid to do that, afraid of the consequences if they should bring the problem to attention of the Legislature.
A sea change is necessary. Changing the Board governance structure is a good first step but not enough. Will the Legislature rise to the challenge?
Kafkaesq returns from a prolonged hiatus for Cynicism Conversion Therapy. I am happy to report that it was only partly successful. Lawyers are pessimists by nature and while it may do a considerable amount of damage to us (alcoholism, mental illness, existential despair etc.) it is a large part of why we are valuable to society. Pollyanna was notoriously poor at discerning worst case scenarios. We are the ones in the crow’s nest, looking for icebergs.
Yet there may actually be some light in that dark corner of legal ethics called the State Bar of California.
At the April 4 meeting of the Governance in the Public Interest Task Force (GITPITF) State Bar Trustees Mangers and Mendoza boldly advocated a proposal that would lead to the disunification of the State Bar of California. That move was met with a spirited reaction, especially by some within the Legal Services Community. Their concern is that lawyers will not support legal services for the disadvantaged unless they are compelled to. There is also a voiced concern that a voluntary California State Bar Association would suck the oxygen that would otherwise feed the local bar associations.
These criticisms don’t really matter and neither do all the good works that State Bar has been involved in that can be pointed to. The Legislature seems to have finally had it with the State Bar and its four decades long history of dysfunction. The scandal that has finally pushed them over the edge is the revelation that the State Bar had been sitting on a few hundred complaints alleging the unauthorized practice of law by non-attorneys. Assemblywomen Lorena Gonzalez is quoted in the Daily Journal as saying it showed public protection is not the bar’s highest priority. “Under the chief trial counsel’s leadership, we have seen inaction and build-up” of unauthorized practice of law cases, said Gonzalez, a San Diego Democrat. An interesting echo of similar allegations (“the TNT Room”) that led to first great era of discipline system reform thirty years ago.
I say “seems” because the Legislature has waxed roth before and then settled for half measures. It is likely that the governing board of the State Bar will be further restructured with a majority of public members but whether the Legislature will be bold enough to commit to the Mangers-Mendoza three-year plan to move toward a California Legal Services Regulatory Board is still most uncertain.
One thing is certain. Even at this early stage, stakeholders are pushing to define themselves on the government agency side of division, including the Legal Services Community. Justice Laurie Zelon of the Second Appellate District and others urged GITPITF at its meeting on Monday April 25 to keep access to justice part of the bar’s regulatory mission whether the agency is de-unified or not. As quoted in the Daily Journal, Justice Zelon said public protection involves much more than attorney admissions and discipline: “I specifically include the bar’s work in ensuring access to the courts, in making sure procedures are fair for litigants, that adequate representation is provided to those in need of representation and that the ability of people to solve their legal problems is protected and preserved.” The world’s largest metaphor was liberally deployed in press comments from the Legislators; in those terms, there is already a rush for the public protection lifeboats.
There is a strange cynicism at work here. The generosity of lawyers in helping the disadvantaged is to be praised but apparently it must be compelled. So how praiseworthy is it really?
So an agency that is still hardly a gleam in few dreamer’s eyes is already subject to mission creep. There is every danger that the Rube Goldberg machine of complex moving parts that is the stakeholder-oriented State Bar will simply be replicated. All of good works the Justice Zelon cited are important and there is certainly a role for government and lawyers to play in providing them. But they are all distractions from the core mission that the new agency needs to focus on: accreditation and regulation of legal service providers. Former State Bar Vice President Heather Rosing put it most succinctly. “Because of all the different moving parts in the organization, there is a distinct lack of focus on the core regulatory function, which is discipline.”
Power is a difficult thing to give up, even as that power grows more and more illusory. The legal profession is not what is once was in terms in power and status, when it dominated the Legislatures of the many states and Congress, too, when its status as an elite class of quasi-governmental officials made institutions like the integrated bar seem like the natural order of things. Business and Professions Code section 6031 still contains the quaint reference to the State Bar’s mission as “advancing the science of jurisprudence” that it did when it was part of the original State Bar Act, but we have come a long and cynical way from the cheery belief that elites have the power to order society for the good of the masses.
Of course, we want to cling, like all neurotics, to the belief that the good times just won’t end but it is time to let go of the Golden Age of Lawyering. Even if we don’t want to let go, a changing society and a changing economy is making us let go. The debate over the future of the integrated bar is taking place against this backdrop, even if the foreground is dominated by the transient scandals of what Bob Hawley rightly describes as as schizophrenic institution. But make no mistake; they are deeply linked.
For now, though, let us sigh, smell the roses, roll up our sleeves and get busy inventing the future.
The Committee on Professional Responsibility and Conduct (COPRAC) of the State Bar of California has a new ethics opinion that has been put out for public comment on the topic of attorney blogging (Proposed Formal Opinion Interim No. 12-0006). The opinion tackles the difficult question of when an attorney’s blog will be subject to the many varied strictures on lawyer advertising contained in our California Rule of Professional Conduct 1-400 and Business and Professions Code Division 3, Chapter 4, Article 9.5.
The draft opinion is a worthy addition to the modern canon of lawyer advertising law, which contains, in addition to Rule and statutes, many court opinions and numerous ethics opinions from bar associations. Well reasoned, scholarly in citation to the relevant authority, and pivoting off of several different hypothetical blogging models, it comes to these conclusions:
Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
A standalone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.
The irony is that this excellent opinion will be taken to heart by a relatively small group of people: lawyers like myself who practices center around other lawyers’ professional responsibilities, and the scrupulous lawyers who hire them, mostly.
The general public doesn’t care about lawyer advertising. Someone estimated that the average consumer is exposed to 5,000 marketing messages a day. Even if that number is grossly exaggerated, it feels true. We are, as Madge would put it, soaking in it. The general public is as blase about lawyer advertising as any other form of advertising. There is no reason that they believe lawyer ads any more than the believe the claims of any other advertiser.
The profession cares about the issue largely because they don’t want trouble from the discipline authorities. And, relevant to that last point, most regulators have exited the field except where the advertising is actually dishonest or misleading. The result is that don’t have to go very far to see violations of the advertising rules; you don’t even have to leave your living room.
It is a truism that almost the only people who complain about lawyer advertising are other lawyers who find it offensive. But the existence of the Texas Law Hawk confirms that the long rear guard action against the indignity of lawyer advertising that has been fought since 1977 truly has been in vain.
Consider Rule 1-400, Standard (9) which states that “a “communication” in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community” is presumptively misleading. Is the discipline prosecutor going to devote its resources to prosecuting a complaint that a lawyer’s blog uses a materially different designation that the attorney uses on his website and thus violates the Standard? No, and they should not. This Standard dates from an ancient era when lawyers were officers of the court first and providers of a service second. Doing business under two different names might be confusing to public that considered something more than mere service providers. That order was reversed some time ago. Even someone who is not a cynic might justifiably believe that the tangled mass of unenforceable advertising rules serves no real purpose, even if makes for very interesting ethics opinions. Processing complaints that result in dismissals or non-disciplinary dispositions wastes the resources the discipline agencies, as well the resources of those lawyers who have to respond to these complaints.
One very sane step forward has proposed by the Association of Professional Responsibility Lawyers (APRL) in its report on advertising issued in June 2015. That step is to cut through it with a simple rule that can be enforced
Based on the survey results, anecdotal information from regulators, ethics opinions, and case law, the Committee concludes that the practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession, and that a practical solution to these problems is best achieved by having a single rule that prohibits false and misleading communications about a lawyer or the lawyer’s services. The Committee believes that state regulators should establish procedures for responding to complaints regarding lawyer advertising through non-disciplinary means. Professional discipline should be reserved for violations that constitute misconduct under ABA Model Rule 8.4(c). The Committee recommends that violations of rule that do not involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4(c) should be handled in the first instance through non-disciplinary means, including the use of advisories or warnings and the use of civil remedies where there is demonstrable and present harm to consumers.
The APRL proposal is essentially that the state of law of lawyer advertising catch up with reality. We are not going back to the pre-Bates era, no matter how much some lawyers and regulators may dream.
So far, the response to APRL’s proposal has been muted. But at the risk of misreading the tea leaves, California’s Second Rules Revision Commission recently withdrew consideration of its replacement for Rule 1-400 from the agenda at its most recent meeting. One can dream.
Update: for a more scholarly treatment of this subject, see Mark Tuft’s excellent article in the most recent edition of The Professional Lawyer.