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.