Jeepers Creepers


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.






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