Senate Bill 387, the dues bill which gives the State Bar the ability to collect the money it operates on, has been amended to subject to the State Bar to the Bagley-Keene Open Meeting Act and to the California Public Records Act. Among other changes, Government Code section 6254 would be amended to read: ” (1) “State agency” means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution. (2) Notwithstanding paragraph (1) or any other law, “state lagency” shall also mean the State Bar of California, as described in Section 6001 of the Business and Professions Code.” Emphasis added.
The State Bar is an agency provided for in Article VI of the California Constitution, but it is now literally definied as a “state agency” for the purposes of public disclosure under the California Public Records Act but the California Supreme Court, which is explicitly exempt from the CPRA, has described the State Bar as its “administrative arm” for discipline and admissions purposes. Assuming these changes go forward, what must the State Bar disclose about the direction it receives from the Supreme Court in the discharge of its duties as the Court’s administrative arm?
Among the more intriguing allegations made in the Dunn Fiasco was the allegation that Senator Dunn misrepresented information from the Chief Justice regarding the Supreme Court’s position on moving the State Bar to Sacramento and, that Beth Jay, former principal attorney to the Chief Justice, played in a role in the decision by the Board of Trustees to fire Senator Dunn. Beth Jay is a defendant in Senator Dunn’s lawsuit.
It is to be expected that the Supreme Court will give direction to its administrative arm. But the extent of that direction, who gives it, who it is given to, and exactly how it is communicated has always been shrouded from public view. In the 1990s that direction was minimal; there is the oft told tale of State Bar communications addressed to the Supreme Court that went unanswered for years, such as the recommendation of the Alarcon Commission in 1994 on permanent disbarment. Since the Supreme Court rode to the rescue in late 1998 by ordering a fee assessment on lawyers to revive the discipline system, it has played a much greater role. We just don’t know how much greater.
Participation in public policy making is not what they want to do. When Beth Jay was appointed as the Supreme Court’s liaison to the recent Committee that revised the Standards for Attorney Sanctions for Professional Misconduct (SASPM), she did not appear at the first two (public) meetings. At the third meeting that she did attend, her most trenchant comment was that the revised SASPM not contain too many comments. Understandable that the Court would not want to help make policy that it might later be called upon to adjudicate on. That is one of reasons for having the State Bar as an administrative arm in the first place. But there must be some kind of communication and we don’t know what it is, with limited exceptions, the most notable being the Supreme Court’s extrordinary letter to another State Bar commission re-writing the Rules of Professional Conduct asking the Commission to look at a revised rule on prosecutorial misconduct.
One of the significant reforms in the governance crisis was the appointment of attorney members to the Board of Trustees by the Supreme Court. These appointees appear to be becoming very powerful in State Bar policy making. One of the first of these appointees, David Pasternak, was elected President of the State Bar in July 2015, defeating Heather Rosing, one of Trustees elected by the members of the State Bar. It might not be surprising if the next incremental step in the ongoing Governance reform, which was on hiatus during the later part of the Dunn era, will be the elimination of elected attorney representatives.
The State Bar is a lonely planet orbiting two suns, dancing in the ebb and flow from the gravity of each one. In recent years, the Supreme Court may have had the greater influence but the new open meeting and public records requirements may push the State Bar more firmly into the Legislature’s orbit. In the meantime, we will get to see how much trust the latest haunting by Transparency Ghost earns the ever-changing State Bar in the hearts of Sacramento. And whether the Supreme Court’s fingerprints show up on the new more-transparent-than-ever State Bar.
Update: The Recorder reported that the Chief Justice contacted a legislator after the amendment “to commit to transparency—like she has for the branch—and about the best fit for transparency rules for the bar” according to her spokesperson. The State Bar’s lobbyist had offered amendments to allow the State Bar to draft its own transparency rules for Supreme Court approval but they were not adopted. Instead amendments to SB 387 were offered to exempt “(j)oint meetings with agencies provided in Article VI of the California Constitution” e.g. the California Supreme Court. The Supreme Court, it seems, has skirted the transparency ghost. On October 8, 2015, Governor Brown signed SB 387.