Will Impaired Attorneys Lose In State Bar’s Shifting Priorities?

Senate Bill 36, our current State Bar fee bill, seems to be coasting to passage in the Assembly and the Governor’s signature.  It makes a number of significant changes to the governing structure of the State Bar that many (including me) have thought were overdue, including eliminating elected attorney trustees,  replacing the office of State Bar President with an appointed chairperson and vice chairperson and, perhaps most significant of all, spinning off the State Bar sections into something called the Association (not to the confused with the hitmakers of the ’60s.)  The kinds of changes that would be consistent with an organization slowly metamorphosizing from an unwieldy and confused hybrid of public and private to a pure governmental agency.   Ultimately these changes will pay off.  But part of how big they pay off depends on California lawyers react to a State Bar that no longer acts as their trade association in any particulars.

The fate of the State Bar’s Lawyer Assistance Program and its related diversion program in State Bar Court, the Alternative Discipline Program underline that challenges.  And SB 36 underlines that underline with a last minute amendment to the bill that passed the Assembly Judiciary Committee on July 18, 2017, making this change to Bus.  & Prof. Code section 6140.9:

 Monies for the support of the program established pursuant to Article 15 (commencing with Section 6230) and related programs approved by the committee established pursuant to Section 6231 shall be paid in whole or part by a fee of ten dollars ($10) per active member per year, and by a fee of five dollars ($5) per inactive member per year. The board may seek alternative sources for funding the program. To the extent that funds from alternative sources are obtained and used for the support of the program, and provided that at least ten dollars ($10) per active member and five dollars ($5) per inactive member is available for support of the program each year, funds provided by the fee established by this section may be applied to the costs of State Bar general fund programs. Any excess funds not needed to support the program, including reserve funds, may be transferred to fund the Client Security Fund established pursuant to Section 6140.5, provided there are sufficient funds available to fully support the program.
Section 6230 et seq. is the Attorney Diversion and Assistance Act, a law passed in 2001 that mandates that the State Bar do something about the big problem of substance abuse and mental health in the legal profession, a long standing problem that recently caught the attention of the mainstream press with the shocking pronouncement that 1 in 5 lawyers has a drinking problem.   Under the auspices of the Act, a $10 fee was levied on the active members of the State Bar ($5 for inactive members) to run the State Bar Lawyer Assistance Program, as stand-alone program to help all California lawyers and as an adjunct to State Bar Court’s Alternative Discipline Program, meant to incentivize lawyers facing discipline with  substance abuse and mental health issues to seek treatment.
The significant and troubling amendment to section 6140.9 authorizes the State Bar Board of Trustees to do the thing that it was taken to task for a few months ago for doing:  taking money for LAP and putting it into the Client Security Fund (CSF).  CSF is another program that California lawyers pay into, $40 a year, to reimburse clients who have been ripped off by their attorneys.   All that is needed is a determination that there are funds in excess of what is “sufficient” to run LAP and ADP.
Despite the Attorney Diversion and Assistance Act, there is uncertainty over whether the Lawyers Assistance Program belongs in the new enforcement-focused State Bar.   Even though the consensus is that substance abuse is a major problem in the profession,  LAP probably seems to some to be a little too lawyer-friendly to be run by a police agency.  The proposed amendment to section 6140.9 may the first move to get the State Bar completely out of the rehabilitation business. But if not the State Bar of California,  then who?
SB 36 creates a wholly new organization, the vaguely named Association, although the original name before amendment was the California Bar Sections Association.  The reasons for the name change is not apparent, but one could speculate that the prior name might be deemed too restrictive of an organization that could grow into a true bar association with programs beyond the mandated education mission set forth the legislation.   Might LAP find a home in the Association?
The answer will depend on whether California attorneys step up and support the Association with their voluntary contributions.  It will also depend on whether leaders within the Association perceive an opportunity to be of service to the bar beyond the valuable services the Sections have always provided.  If there is a worthier cause than the sickness in our profession, I don’t know what it would be.

“if a river swell beyond its banks, it loseth its own channel

admission

Today I celebrate 30 years since my admission to the State Bar of California.

Like every year, I will celebrate this anniversary by re-reading Hoffman’s “Fifty Resolutions in Regard to Professional Deportment”,  which is actually the resolution #50.  By this act I will consecrate myself for yet another year bearing the heavy office of attorney and counselor at law.

Hoffman may be old (1836) but he never goes out of style.  As I prepare for my new gig teaching professional responsibility, I don’t know that our current rules of professional responsibility represent that much of an improvement.  So I commend them to you.

 

The Supreme Court’s Sensible Shoes

The California Supreme Court has issued its order in response to the State Bar of California’s request for a special assessment of fees.  The Court predictably resisted the State Bar’s request for funding functions that have not directly related to the core mission of discipline.  They did not rule out granting that request under some different set of circumstances, but “in light of the particular set of circumstances facing the State Bar in 2017” such an order was not justified.  The Court encouraged the State Bar to seek “appropriate funding sources apart from the special assessment” to support the non-discipline programs of the State Bar that support public protection, such as the Commission of Judicial Nominees Evaluation, the Center on  Access to Justice, and the California Commission on Access to Justice.  In other words, the Legislature.

sensible-shoes

Any hopes that the Supreme Court would step out of its historically deferential role to the Legislature in State Bar matters were firmly dashed.  The Supreme Court will not step into the role of the permanent funder of the State Bar; it will only act when the Legislature fails to.  This decision exactly follows the path laid down in 1998, right down to appointing Justice Lui to act as special master to oversee the strict application of the funds to discipline functions.  Here there more than a whiff of distrust that the State Bar can order its finances, distrust that certainly seems justified given the recent history money games at the State Bar, including the funds raided to the pay for the Los Angeles building and the questionable diversion of funds from the Lawyer Assistance Program to the Client Security Fund.

Now the spotlight turns again to the Legislature to address the long-term issues facing the State Bar, including whether all its various functions would be better discharged if not under the same roof.    In the meantime, we have a cautious decision from the Supreme Court that maintains the status quo.

 

State Bar Money Games Continue

History repeats itself, first as tragedy, second as farce–   Karl Marx

On October 17, 2016, the California Supreme Court appointed Justice Elwood Lui to serve as Special Master in evaluating the request filed by the State Bar of California for an order assessing fees against the members of the State Bar to fund the operations of the State Bar disciplinary system.  Justice Lui is well-qualified for the job, having previously served as Special Master when the Supreme Court ordered the first, and so far, only special assessment,by the Supreme Court, in its 1998 decision In Re Attorney Discipline System.   His appointment does not bode well for the expansive request filed by the State Bar on September 30, 2016.

In that request, the State Bar sought an order funding not only the essential components of the discipline system that were funded in 1998 — the disciplinary prosecutor (the Office of Chief Trial Counsel), the adjudication arm (the State Bar Court) and the office supporting professional competence.  Instead, it sought an order funding all that and more,  State Bar organs that have little or no direct relationship with the discipline system, such as the California Young Lawyers Association, the Center on Access to Justice, the California Commission on Access to Justice, and the Office of Communication.  Moreover, hidden in depths of the 300 pages of appendices supporting the request (but not made public on the State Bar’s website) were a number of questionable expenditures.

Most of us might not have known about these questionable expenditures but for the response filed by Prof.  Robert Fellmeth and the Center for Public Interest Law (CPIL)on October 11, 2016.  More deja vu: Prof.  Fellmeth served as the appointed discipline monitor between 1987 and 1991, when the current discipline system was created.  A brief excerpt from CPIL’s response illuminates the sloppiness of the State Bar’s request:

Even a rudimentary attempt to trace the sources of the Bar’s figures raises some serious red flags. In Table 3 of Appendix F, for example, the Bar states that the total cost of the above-described core disciplinary offices in 2016 was $64,438,000 – but that figure includes $20,779,700 in “Indirect Costs” (32% of the total cost) that are nowhere itemized so the reader can be assured that those indirect costs were properly attributable to those disciplinary units.

Most disturbingly, a portion of these indirect costs – which have been allocated to the core discipline functions and are presumably a part of the Bar’s current Request before the Court – includes $56,300 in expenses for Board of Trustees elections! See Appendix F at page 6, footnote 10; Appendix C- expenditure detail at Cost Center 10005.

Moreover, the Executive Director / Board of Trustees budgets – which are also allocated proportionately to the disciplinary functions under the Bar’s “cost allocation plan” even though they have little impact on the discipline system outside of nominating and appointing the Chief Trial Counsel – include significant and completely unnecessary costs such as an annual $44,500 catering budget for the Board of Trustees, and a $7,400 catering budget for the Executive Director alone. See Appendix F at pages 5-6; and Appendix C (expenditure detail for Cost Centers 10001, 10003)

CPIL’s Amicus Curiae letter dated October 11, 2016, page 6.  The letter goes on to note that no other government agency pays for catering, not even coffee.  Instead, employees are reimbursed for meals taken on duty according to established schedule.  And, of  course, they don’t have elections.

But it is more than sloppiness.  The corporate culture of the State Bar still hasn’t wrapped its head around the fact that it is not a bar association but a government consumer protection agency.   Thus, the rather sudden, transparent  and entirely unconvincing  effort to re-define “public protection” so broadly as to include everything the State Bar does (“Jeepers Creepers.“)

And it never will.   That is why disunification, total or limited by moving the discipline function to a new agency, is absolutely essential.

I finally caught up with Professor Richard Abel’s excellent book “Lawyers On Trial: Understanding Ethical Misconduct.”  Chapter 1 provides a very comprehensive look at lawyer regulation over the last century and its peculiar history in California.  The roots of the dysfunction go far back, much farther back than the 30 years that I am personally familiar with, even to the turn of the last century.   Everything that we are debating now has  been debated before, many, many times.  It won’t be changed by a change in management or even a change in governing structure.

In 1998, California experienced a tragedy when the discipline system shut down after Gov. Wilson’s veto of  the dues bill.   A vital part of the justice system simply ceased operating for six months despite the valiant efforts of State Bar President Marc Adelman and others.  It ceased functioning because the State Legislature was tired of the money games played by the State Bar, including the diversion of funds dedicated to hiring discipline personnel  for purposes having nothing to do with discipline.   There was no trust in the State Bar as an institution.  Now 18 years later, we find ourselves repeating history.  This time the tragedy has become farce as the State Bar struggles to  hold on to its schizophrenic nature,  struggles to placate all of its many “stakeholders” even as the real work of public protection embodied in the Office of Chief Trial Counsel and the State Bar Court drifts while funds for elections and catering are earnestly sought.   As Professor Fellmeth notes, if public protection is defined to include everything, then public protection is not prioritized.

The Supreme Court will undoubtedly fund the essential functions of the discipline system with Justice Lui’s very able assistance.  Once that is done, it will be time to move toward giving the discipline system the true priority and focus that it deserves.  That means separating it from the current structure.

New State Bar President Gets It

This quote caught my eye from new State Bar President Jim Fox’s interview with The Recorder:

And my view is that the role of the bar is not to enhance the business of lawyers, it is to protect the public and to enhance the confidence of the public in the administration of justice. So everything we do should be toward enhancing the administration of justice for the benefit of the public, not for the benefit of lawyers.

Mr. Fox understands that the postulate that disunification means separating the trade association function from the regulatory function is a not really accurate anymore.   There is precious little trade association function left to purge; we can’t even go to Disneyland next year.  The disunification debate has been re-framed as regulatory function versus access-to-justice function.  It is  a clever re-framing but it avoids the real issues.  While there may not be “inherent tension” between them, as asserted by the GITPITF report, they are still much different functions that  have no real relationship to each other.   Lawyers will never trusted to run their own disciplinary apparatus.  And discipline is important work that demands the singular focus of dedicated agencies.

Expansive State Bar Funding Request Rests On Thin Reed

beautiful-red-dragonfly-sit-point-thin-reed-68442256On Friday, September 30, 2016, the State Bar of California submitted its request to the California Supreme Court asking for an order assessing fees against California lawyers to fund the Bar’s operations.  The requests asks for funding of the State Bar’s discipline system, the discipline prosecutors in the Office of Chief Trial Counsel (OCTC), the discipline adjudicators in the State Bar Court, the Office of Probation which monitors suspended lawyers, the Office of Competence, which administers State Bar educational programs, the Office of General Counsel, and the State Bar’s lawyer the State Bar’s Office of Member Records.  These offices all have missions that are directly related to attorney discipline.

The State Bar is also asking for funding for the Commission on Judicial Nominees Evaluation, the Center on Access to Justice, the California Commission on Access to Justice, the California Young Lawyers Association (CYLA) and its Office of Communications.  The work of these offices is not directly related to discipline.  The funding request at its maximum is only slightly less ($280) than the level of recently set by the Legislature ($315;  see Bus. & Prof. Code section 6140.

The primary source of authority for this request is the Supreme Court’s own decision from 1998, In Re Attorney Discipline System (1998) 19 Cal.4th 582.  The Court held in that decision that it could order a special assessment against California lawyers to support the work of the discipline system.  The State Bar had asked the Supreme Court to order an assessment to pay for the discipline system, including OCTC, the State Bar Court, the Office of Probation, the General Counsel’s office and fee arbitration.   The Court granted that request based on its “inherent authority” in the areas of attorney discipline.  The Supreme Court was not asked to fund other State Bar programs beyond those directly dedicated to discipline.  In fact, it appointed a Special Master to oversee the expenditure of the special assessment, to specifically prevent those funds from being spent on anything but direct expenditures for discipline.

The decision in  Attorney Discipline System is bottomed on the Supreme Court’s inherent power to regulate the practice of law “In California, the power to regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powers of the article VI courts. Indeed, every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary. [Citation.] ‘This is necessarily so. An attorney is an officer of the court and whether a person shall be admitted [or disciplined] is a judicial, and not a legislative, question.'” 19 Cal.4th at 592.

There is no doubt that the Court can order attorneys to pay for the discipline system.  But what else is included in “the power to regulate the practice of law”?  Attorney Discipline System doesn’t tell us because it was never at issue.

The State Bar cites to Warden v.  State Bar (1999) 21 Cal.4th 628,  the decision that upheld the MCLE statutes against an equal protection challenged.   The issue was not addressed in Warden, either, and the Bar cites to dicta in Justice Kennard’s dissent for a  proposition not really in dispute,  that the educational standards  of attorneys were within the Court’s purview (“In each state it is the supreme court, with or without the legislative approval, that dictates the standards for education, admission and discipline of attorneys. ” quoting Martineau, The Supreme Court and State Regulation of the Legal Profession (1980-1981) 8 Hastings Const.L.Q. 199, 202.) Moreover,  Martineau was also cited in Attorney Discipline System at 593.  So Warden adds nothing new and it seems to cited solely to make it appear that there is more authority than there is.   There is nothing in Attorney Discipline System or Warden that describes how  far the Court’s power goes,  beyond the suggestion, taken from Brotsky v.  State Bar,  that it includes “many of its other functions” of the State Bar beyond discipline and admissions. Brotsky v. State Bar (1962)57 Cal.2d 287, 300-301.

While Attorney Discipline System is the launch pad for the State Bar’s request, it really depends on the recently promulgated idea that we should adopt a more expansive “proactive” definition of “public protection.” A strong case could be made that the Office of Competence and perhaps some of CYLA’s educational activities, have a close relationship with protecting the public from incompetent practitioners.  But there is no way to stretch any reasonable definition of public protection to include access to justice  programs,  the CYLA, the Center on Access to Justice, and the California Commission on Access to Justice  (see Jeepers Creepers.)

That does not mean that these not worthwhile programs.  It just means that there is only the thinnest authority for Supreme Court action to fund them. Conversely, there is no doubt that the Legislature has the power to fund those programs in the exercise of its inherent power to provide for the general welfare.

If it Supreme Court decides to do so, it will have to go boldly where it has never gone before, or even been asked to go before, and invent that authority largely from whole cloth.  As exciting as the separation of powers confrontation between the Supreme Court and the Assembly has been, it will likely get a whole lot more exciting if the Supreme Court goes there.

scorpions