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.