Dan Walters on “State Bar Power Grab”

Dan Walters, the Sacramento Bee’s longtime political reporter, has a story regarding an some interesting legislative legerdemain exhibited by the State Bar of California.

Last year it sponsored AB 888 (Dickinson), a bill that would have allowed the State Bar to recover a civil penalty of $2,500 in enforcement actions enjoining the unauthorized practice of law (Bus. & Prof. Code section 6125 et seq.)  The bill was designated “urgency legislation.”   Continue reading

Present at the Creative Destruction

shiva

Shiva is in the house…

Professor William Henderson’s latest article is “Letting Go of Old Ideas”  (h/t to  John Steele and the indispensible (as we were recently reminded) Legal Ethics Forum.)  As usually, his work is full of insight and abundant cross-reference to any number of personal, cultural historical signposts that you might recognize.

For me, the reference to Finley Kumble was all three.  Although I never worked at Continue reading

Futurist: Lawyers Will Begin To Be Obsolete This Year

Karl Schroeder envisions a future where human beings have “replaced their legal system with all-knowing A[rtficial] I[ntelligences].   While this is a possibility recognized for some time (The Future’s So Bright…), Mr. Schroeder, science fiction writer and strategic foresight consultant thinks that this is the year when lawyers begin to become obsolete. Within a few decades, the primary task of our profession might well be instructing and running the justice machines.  Until they get smart enough to do it themselves.

robot lawyer

Since we are fundamentally in the information processing business, more so than all professions, Continue reading

Bankruptcy for a Lawyer, “Chapter 11” for the State Bar

A Lawyer and Partner, and Also Bankrupt – NYTimes.com. A sad but unfortunately emblematic story that captures where we at in the most human terms.  Members of my lawyer cohort like Mr.  Owens caught the big wave thirty years ago, a wave now breaking on the shore, depositing dazed surfers all over the rocks.  My law school classmates in 1983 thought that the only acceptable fate was finishing in the top 10% and going to work for a big firm with the expectation of making partner in seven years.  It seems so quaint now, as if we were talking about the hopes and expectations of the Lost Generation in 1920’s Paris.   For them, the world moved on, and so it has with us. 

As I noted in a prior post (The Great Perpetual Motion Public Protection Machine), Prof. William Henderson gave a presentation to the State Bar Board of Trustees that outlined some of the ways the world has moved on and some of the ways businesses that provide legal services have moved on.  Afterwards, in a colloquy with Staff, I expressed the view that our ethics rules were obsolete with respect to these new business models.  Staff replied with a reference to the Ten Commandments.  I didn’t quite understand it at the time but later I figured he had meant that the ethics rules are like moral rules, eternal principles that don’t change with the economic winds.  I wondered then just how much of the import of Prof. Henderson’s presentation really penetrated.

Or perhaps they understand all too well and see themselves standing against the barbarians at the gates.  It’s a romantic notion that I have seen in discipline staff, including myself.  On a practical level, the State Bar understands that the coming decade will see an actual contraction in the number of lawyers and they are already calculating how that will effect their future revenues.  But I don’t think we know how big that contraction will be. Ultimately, the State Bar will have to re-invent (or in bankruptcy terms, re-organize; see 11 USC section 1101, et seq.) itself as a regulator of legal service providers, traditional lawyers and non-traditional providers alike.  It is already exploring the idea of limited licenses and has recently been given authority to collect civil monetary penalties for the unauthorized practice of law now codified as Bus. & Prof Code section 6126.8.  As the lawyer discipline caseload shrinks, you can expect that the State Bar will be devoting more of its resources to filing civil UPL actions under section 6126.3 now that it can recover money through them.

The short term response will be professional retrenchment.  Government agencies typically aren’t nimble enough to get out in front of change, only react to it.  But surely some forward thinkers at the State Bar are looking at the long term need for a complete Chapter 11, and going where the rest of the English speaking world is headed?

The Great Public Protection Perpetual Motion Machine

The Board of Trustees of the State Bar of California held it’s annual planning meeting in Newport Beach yesterday.  Although it was open meeting, only a few people outside the Board and staff were in attendance, folks like me who have some professional interest in the activities of this peculiar institution.

And the peculiarity of the institution was a big topic of the discussion.  We have already begun to see the impact the “governance” changes that have gone into effect over the last three years, the changes mandated  by the Legislature through SB 163.  Only the most obvious is the State Bar’s public protection mission is literally written in stone outside the State Bar’s new building in Los Angeles.  Public protection was everyone’s mantra at the planning meeting.

One public member of the BoT went so far as suggest that the State Bar was indifferent to public protection prior to SB 163, more concerned with its “trade association” function until the Legislature forced it to cure its slack ways.  Many of us involved in the discipline system over last few decades (25 years in my case) would find this assertion bizarre.  It’s clear that the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role, continues to exist, not to mention ill feeling from the raucous fight over governance a couple of years ago, apparent in other Trustee’s responses to this public member.

But its clear that everyone has gotten the message that public protection is the State Bar’s only mission, even if it has been virtually the only mission for most of the last thirty years.  It is politically incorrect now to suggest that the State Bar do something that might only benefit its members.  In discussion about one specific proposal, an attorney Trustee asked sheepishy whether it was permissible to consider the impact that the proposal might have on attorneys.  The members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.

Almost the only thing that remains is changing the name.  “The State Bar of California” still makes it sound as if this were a bar association, and even our guest presenter, the most astute Prof.  William Henderson of Indiana University, made the mistake of referring to as the State Bar Association.  But the many references to the local bar associations by both Board and Staff made it clear that the trade association function is theirs, and theirs alone.

Many positive changes have been made.  The vertical prosecution system, long advocated by close observers of the Office of Chief Trial Counsel has been implemented, to the credit of the Chief Trial Counsel. After years of IT plans and false promises, it may be that the ancient IT infrastructure of the State Bar has final been replaced.  Efficiency is the other watchword of the day and presentations by Staff furnished cause for optimism that the discipline machinery will spend its limited resources more efficiently in the future.

Another positive change was reflected in the explicit acknowledgement that the culture of State Bar has been dysfunctional.  Beyond that acknowledgement, however, there wasn’t much specific discussion about to change that.  Perhaps that’s because the essential ingredient in changing a dysfunctional organizational culture is inspired leadership, and the State Bar has not suffered from an excess of that.  When I was a manager in the Office of Chief Trial Counsel at the turn of the century, we hired a management consultant who went through a number of exercises with OCTC management identifying exactly what the specific management dysfunctions were.  That study is gathering dust on some shelf somewhere, along with innumerable other studies (the State Bar of California might be second most studied organization on earth, just behind the Soviet Union.)  Perhaps the State Bar’s Strategic Plan will provide continuity for change but the State Bar has some kind of Strategic Plan for many years.

Sharks have to keep moving in order to breathe.  Like the shark, the State Bar has to keep coming up with new ideas to protect the public in order to breathe politically.  Some of those ideas are actually good one;  others seem based on the notion that any measures that increases the onerousness of the discipline system and the harshness of the consequences of discipline, enhances public protection.  This is related to the idea that the State Bar has been lax in protecting the public because “the fox is guarding the henhouse”, the idea alluded to in the public Trustee’s comments.

Among some people, you can’t hang ’em too high.  When I was a young Deputy Trial Counsel, I telephoned a complainant to tell her the good news that the attorney she complained about had been disbarred. “Is that all you’re going to do to him?” she responded.  To me, there was a bit of that spirit in the weak bill of particulars contained in the legislative history of AB 2764, the legislation that brought the governance issue to the fore.

So we have thirty years of constant change to the discipline system and many if not all of those changes have removed procedural rights of an attorneys in the discipline system (e.g., 1997, removing the right of an attorney to challenge inactive status pending a disbarment recommendation and 2011, removing the right to discovery as provided in the Code of Civil Procedure) or increasing the harshness of discipline consequences (e.g. 1997, changes in the summary disbarment statute, see In re Lesansky; 2010, consumer alert badges on State Bar member web pages.)  Some of these proposals have been defeated, such as former Chief Trial Counsel Scott Drexel’s attempt to allow OCTC to opt out of prefiling settlement conferences (2008) and the recent attempt to post consumer alert badges on every respondent in a formal discipline proceeding.

T he consumer alert badge proposal was defeated because it would have given the State Bar the power to impose de facto discipline without proving its case in State Bar Court.  This would be highly efficient.  But there remain realms of the law where the correct result is as important as efficiency, as Prof. Henderson pointed out in his presentation.  He was referring specifically to criminal prosecution and defense, a realm that remains in his “Bespoke” category where the public interest still requires artisanal craftmanship. The discipline system remains in the category, although they always told us that we were building Chevys, not Cadillacs.

Specific proposals were discussed at the planning meeting in three areas (1) mandatory legal malpractice insurance and insurance disclosure requirements; (2) random client trust account audits;  and (3) requiring advanced fees to be placed in trust.

None of these proposals are new and so far they have been non-starters for a variety of reasons.  Each proposal deserves a blog post of its own but in summary

(1) mandatory legal malpractice insurance would benefit the public but would be very complicated and expensive to set up and maintain;

(2) random client trust account audits probably would have some in terrerom effect in discouraging misappropriation but will be labor intensive and raise privacy concerns (see Valley National Bank.) There is also some question whether OCTC has the statutory authority to do random audits;  as OCTC’s liasion with COPRAC in 2000 , I asserted that position and was met with some skepticism;

(3) the Supreme Court has rejected attempts to read Rule 4-100 as requiring unearned advanced fees to be placed in trust (Baranowski) and rejected the last attempt to amend 4-100 to explicitly require it.  

These proposals all merit reasonable discussion.  Almost certainly though, the Chief Trial Counsel will weigh in with her own ideas about enhancing public protection and I can hope that these will not ignore the interests of the members of the State Bar of California and place efficiency ahead of fairness.

The Mindful Lawyer

I had a head full of ideas

That were driving me insane

— Bob Dylan “Maggie’s Farm”

A mind might be a terrible thing to waste but for lawyers overuse is the greater danger.  Most of what we do involves a degree of mental effort, even the more drudgerous tasks.  Legal research often involves hours of focusing on the driest of material, looking for an elusive thread of hope amid the dust of otherwise forgotten controversies, and document review can seem like living death.  Trial presents its own different Hell, not being able to think quickly enough to parry some thrust from opposing counsel, or to keep the judge or jury from going south.

We are used to sweating about the details.  And understand the consequences when we don’t sweat hard enough.   Pessimism is part of what we do;  figuring out worst case scenarios for people or institutions, helping them evaluate risks, guiding them toward choosing the best options.   It’s stressful but we eat stress for breakfast! Tiger Lawyer would understand.

There is no doubt that the combination of intense mental effort required and the stress involved in most areas of law practice is not healthy for the people we call lawyers.  Not healthy for mind, body or soul.   Part of what seems a new acceptance of this reality was apparent at the recent meeting of the Association of Professional Responsibility Lawyers in San Francisco.  Scott Rogers and Prof. Jan Jacobwitz of the University of Miami presented their work on teaching mindfulness to law students.  Mindfulness refers to the practice of living in the present moment, an ancient discipline that finds validation in modern neuroscience and psychology to an audience of ethics lawyers.

APRL members are somewhat notorious for sharing their views, sometimes quite vocally and there might have been a time when this presentation would have been a little too far, even for the Left Coast.  But the people in the room, the people who are the lawyers’ lawyers got it.  They see the problems first hand, in minds, bodies and souls of the people that make up the profession.

Lawyers as a group are cocksure, often to a fault.  The stereotype of lawyers as arrogant and self-absorbed is a staple of popular entertainment.  But the slow realization that the bubble years are over has shaken off some of that old attitude, and the next generation of entering lawyers will shake off a lot of the rest.  Lawyers will have to get used to living in a world where they aren’t so special any more.

Jacobwitz and Rogers understand that the next generation of lawyers will need a different mindset to succeed, a mindset built on the reality of risk.   Mindfulness, the ability to focus on the here and now, is a skill that can be taught, and it will be regarded as a natural part of a lawyer’s toolkit.  But the greater benefit will be to enable a younger generation of lawyers a better life.   Mindfulness can only help the repudiation of the dehumanized lawyer as a role model.