State Bar Management Lost at Sea

Allusions to the sinking of the Titanic were prominent in our last post on the Assembly Judiciary Committee’s hearing on the State Bar’s annual fee bill.   But it may be that allusions to the Lusitania are more apt.

The latest torpedo to hit the State Bar mid-ships comes in the form of the latest State Auditor’s report.  The aggressive criticism of  this report was so bleak as to make the wider world take notice (“Audit Rips California’s State Bar for Shady Finances and Bloated Salaries” — LA Times May 13, 2016.)  Even unflappable State Bar Executive Director Elizabeth Parker was moved to complain about the tone of the report.   She hinted at the Committee hearing meeting that she might not have taken the job had she known the parlous  state of the vessel she was shipping out on.   Now it is looking more and more like she might be the last executive director, tasked with the grim mission of overseeing the dissolution of the State Bar into two different entities.

Perhaps the tone is a bit nasty but the substance of the State Auditor’s  report is damning.   It suggests that even the arrival of the hyper-competent executive team has made little or no difference in the strange way the State Bar operates.  The creation of a non-profit foundation, the nobly titled State Bar Access and Education Foundation, by the former ED, Senator Joe Dunn, seems like the kind of too-clever-by-half move that we might have expected from him, especially when we learn that the Foundation did little or nothing to advance its stated purpose.  Most of its funds were spent on unrelated purposes, including $4,800 Sacramento on a dinner related to a California State Fair (we have a State Fair? who knew?) project called A Conversation With Abraham Lincoln, which ate up another $17,300.  It is the kind of feel-good project that would naturally appeal to some set of “stakeholders” or another.  So much more attractive than the gritty work of actually regulating the profession.

Lusitania

Can the Andria Doria be far behind?

But the news that $14,800 was used to bail out the Foundation in  December 2015 without the knowledge or approval of the Board of Trustees deals a serious blow to the idea that the State Bar’s new Executive Team or the Board  of Trustees now has a handle on what is going on.  Perusing the many charts and diagrams of the State Auditor’s  report leads to a well supported impression that the State Bar is Rube Goldberg machine of Byzantine complexity.  Figuring out how this organization works (or doesn’t work)  is a challenge even for those in charge.  That is a natural result of an organizational philosophy devoted to placating “stakeholders” rather the focusing on the core mission.

A Conversation With Abraham Lincoln seems even more galling when we read about the plight of the State Bar’s Client Security Fund,  one of the most important public protection programs that the State Bar administers.  Every lawyer in California pays $40 to the Fund which compensates clients who have been ripped off by dishonest attorneys.  While the party was in full swing at the Citizen’s Hotel, the Fund was running out of money to pay the enormous amount of claims that had been accumulated during the Great Recession, leading to a potential liability of almost $19 million.   This had  been obvious since 2011 when the number of claims against the  Fund began to skyrocket.  I recall listening to a fraught appeal from members the Client Security Fund Commission and staff to take action to remedy the problem.  But the Board of Trustees did nothing.

Well, not exactly nothing.  What they did do is cover up the problem by omitting any mention of it in the State Bar’s financial reports beginning in 2012.  What they should have  done was go the State Legislature and ask for a greater contribution from the lawyers of California to pay those claims.  But they were afraid to do that, afraid of the consequences if they should bring the problem to attention of the Legislature.

A sea change is necessary.   Changing the Board governance  structure is a good first step but not enough.  Will the Legislature rise to the challenge?

Everything’s Coming Up Neuroses

roses-thorns5b15d

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.

Der Untergang der Titanic

Der Untergang der Titanic

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.

 

 

 

 

 

 

Severing the Gordian Knot

The Committee on Professional Responsibility and Conduct (COPRAC) of the State Bar of California has a new ethics opinion that has been put out for public comment on the topic of attorney blogging (Proposed Formal Opinion Interim No. 12-0006).  The opinion tackles the difficult question of when an attorney’s blog will be subject to the many varied strictures on lawyer advertising contained in our California Rule of Professional Conduct 1-400 and Business and Professions Code Division 3, Chapter 4,  Article 9.5.

The draft opinion is a worthy addition to the modern canon of lawyer advertising law, which contains, in addition to Rule and statutes, many court opinions and numerous ethics opinions from bar associations.  Well reasoned, scholarly in citation to the relevant authority,  and pivoting off of several different hypothetical blogging models, it comes to these conclusions:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

  2. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.

  3. A stand-alone blog by an attorney, even if discussing legal topics  within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.

  4. A standalone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

The irony is that this excellent opinion will be taken to heart by a relatively small group of people:  lawyers like myself who practices center around other lawyers’ professional responsibilities, and the scrupulous lawyers who hire them, mostly.

The general public doesn’t care about lawyer advertising.  Someone estimated that the average consumer is exposed to 5,000 marketing messages a day.  Even if that number is grossly exaggerated, it feels true.  We are, as Madge would put it, soaking in it.  The general public is as blase about lawyer advertising as any other form of advertising.  There is no reason that they believe lawyer ads any more than the believe the claims of any other advertiser.

The profession cares about the issue largely because they don’t want trouble from the discipline authorities.  And, relevant to that last point, most regulators have exited the field except where the advertising is actually dishonest or misleading.  The result is that don’t have to go very far to see violations of the advertising rules; you don’t even have to leave your living room.

It is a truism that almost the only people who complain about lawyer advertising are other lawyers who find it offensive.  But the existence of the Texas Law Hawk  confirms that the long rear guard action against the indignity of lawyer advertising that has been fought since 1977 truly has been in vain.

Consider Rule 1-400, Standard (9) which states that “a “communication” in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community” is presumptively misleading.  Is the discipline prosecutor going to devote  its resources to prosecuting a complaint that  a lawyer’s blog  uses a materially different designation that the attorney uses on his website and thus violates the Standard?   No, and they should not.  This Standard dates from an ancient era when lawyers were officers of the court first and providers of a service second. Doing business under two different names might be confusing to public that considered something more than mere service providers. That order was reversed some time ago. Even someone who is not a cynic might justifiably believe that the tangled mass of unenforceable advertising rules serves no real purpose, even if makes for very interesting ethics opinions.   Processing complaints that result in dismissals or non-disciplinary dispositions wastes the resources the discipline agencies, as well the resources of those lawyers who have to respond to these complaints.

One very sane step forward has proposed by the Association of Professional Responsibility Lawyers (APRL) in its report on advertising issued in June 2015.  That step is to cut through it with a simple rule that can be enforced

 Based on the survey results, anecdotal information from regulators, ethics opinions, and case law, the Committee concludes that the practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession, and that a practical solution to these problems is best achieved by having a single rule that prohibits false and misleading communications about a lawyer or the lawyer’s services. The Committee believes that state regulators should establish procedures for responding to complaints regarding lawyer advertising through non-disciplinary means. Professional discipline should be reserved for violations that constitute misconduct under ABA Model Rule 8.4(c). The Committee recommends that violations of rule that do not involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4(c) should be handled in the first instance through non-disciplinary means, including the use of advisories or warnings and the use of civil remedies where there is demonstrable and present harm to consumers.

Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811)

Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811)

The APRL proposal is essentially that the state of law of lawyer advertising catch up with reality.  We are not going back to the pre-Bates era, no matter how much some lawyers and regulators may dream.

So far, the response to APRL’s proposal has been muted.  But at the risk of misreading the tea leaves, California’s Second Rules Revision Commission recently withdrew consideration of its replacement for Rule 1-400 from the agenda at its most recent meeting.  One can dream.

Update:  for a more scholarly treatment of this subject, see Mark Tuft’s excellent article in the most recent edition of The Professional Lawyer.

Cracks in the Guild

guild 2The meetings of the Association of Professional Responsibility Lawyers are always worthwhile.  Think of hanging out with the best craftsmen (and craftswomen) in your guild, who also happen to be a lot of fun, too.

The recent meeting in my hometown of San Diego was no exception.    We learned about the fine art of bellydancing.  Not to mention teeth whitening.

Or more precisely, who gets to whiten teeth.  An issue that the United States Supreme Court addressed in North Carolina Board of Dental Examiners v. Federal Trade Commission.  Teeth whitening may seem a long remove from legal ethics.  But this case is causing tremors among champions of that long held shibboleth about the law being a “self regulating” profession.   That’s because the United States Supreme Court found that North Carolina’s Board, composed almost entirely of practicing dentists, acted in restraint of trade when it sent 47 “cease and desist” letters to non-dentists providing teeth whitening services.  The Court found that the Board could not claim state action immunity because it was not actively supervised by the state.

“Self regulating profession” and “actively supervised by the state” are concepts that clearly exist in some tension.   In California, our case law seems to try to square that circle by describing the State Bar (an agency enshrined in Article VI of the California Constitution) as the “administrative arm” of the Court for discipline and admissions, a mere instrumentality for the exercise of the Court’s inherent authority over this area, a concept that the Legislature also nods to in Bus. & Prof. Code section 6100.

But the real issue here is the not regulating law practice but who gets to be a law practitioner.   The context is the onslaught of a variety of non-traditional legal service providers, an onslaught that is making lawyers extremely nervous as they see their slice of the legal services pie being slowly nibbled away by the likes of Legal Zoom, and now, the much despised Avvo, which just announced its plans to offer fixed fee legal services through an attorney network in 18 states.   Fear of a non-lawyer planet is also roiling Washington State, which has seen warfare between the Washington Supreme Court Legal Practice Board and the Washington State Bar over the Limited License Legal Technician (3LT) concept (even as Utah explores the concept.)

3LT

The Case of The Rogue Teeth  Whiteners also has impact on the California State Bar’s own ongoing governance soap opera, a production of the Governance in the Public Interest Task Force (GITPIT-F) from an original screenplay by SB 163.  While the evidence of state supervision in California seems strong,  the idea that the professional board regulating lawyers should be composed of lawyers, is a prime target of consumer advocates led by the Center for Public Interest Task Law.  GITPIT-F has a report due in March 2017 and it may very well recommend further changes to put more non-attorney members on the State Bar Board of Trustees, if not more sweeping changes.  Of course, the Legislature could get there first, as consideration of the State Bar’s annual fee  bill moves forward amidst a swirl of negative stories concerning the ongoing controversy over the Chief Trial Counsel’s reappointment,  the revelation of extravagant travel spending during the Dunn Administration, and news of the Office of Chief Trial Counsel’s seemingly lax attitude toward prosecuting non-attorney immigration fraudsters.

A final item submitted for your consideration is the American Bar Association’s Resolution just passed at its own meeting in my lovely city by the bay, the ABA Model Regulatory Objectives for the Provision of Legal Services.  It is a short list of admirable platitudes like “protection of the public” and “independence of professional judgment”.  But it closes with a rather solid declaration in support of the guild, much to the disappointment of those who favor the disruptors:

FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

sand castle

Cracks in the Guild, to be sure.  But the Guild still stands.

Philbrook McCoy, Ethics Investigator: The Case of the Pensive Prosecutor

Outside my office window, the rain had turned Alvarado Boulevard into a river of chocolate. Except you wouldn’t want your chocolate to be this shade of brown.  Across the mud river, some fool in a paddleboat was battling whitecaps on MacArthur Park Lake.  It was a dull day with nothing to do but wait for trouble.

McCoy

The phone rang.  “This is the long distance operator”, a nasal voice announced.  “A person to person call for Philbrook McCoy from Earl Warren.  Will you accept the call?”

“This is McCoy. With pleasure!” I barked.  Warren laughed. “McCoy. It has been too long.  I don’t think I’ve talked to you since you worked for me on those bootlegging cases.”

“A lot of mud over the dam since then, Earl” I said, “ I suppose you heard what happened with the State Bar?”

“Yeah, but it doesn’t change my view of you one bit.  I know you are a stand up guy and they were fools to let you go.  But I figure I can use your experience. I need some ethics advice.  I am a little steamed, to tell the truth. The State Bar is looking into the conduct of some of my prosecutors and I am damn mad about it.”

earlwarren

“I don’t know why, Earl, your boys are lawyers and subject to the same professional rules as everyone else.  Almost.  Unlike the civil lawyers, you are shielded by the immunity doctrines.   The US Supreme Court said so in Imbler v. Pachtman  (1976) 424 U.S. 409.   That immunity means that even a wronged criminal defendant has no civil redress against a prosecutor.  Without immunity, you guys would forever be looking over your shoulder, waiting to get sued.   But for that immunity you get the possibility of professional discipline for a malicious or dishonest prosecutor.  The Supremes said that a “prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.”

“The Supreme Court?  What do they know? The State Bar?  They have never raised questions about what we do before!”

“Right. Despite the language in Imbler, it is no secret that prosecutors are hardly ever prosecuted by the disciplinary authorities.  Look at  Zacharias, The Professional Discipline of Prosecutors, 79 No. Carolina Law Review 722.   Zacharias characterizes the lack of reported discipline cases involving criminal prosecutors as “surprising” in light of the frequent references to prosecutorial misconduct in the case law.  A little rain has got to fall into everyone’s professional life now and then, Earl”

”When you deal with the State Bar, McCoy, it’s more like the deluge.  They say one of my prosecutors failed to provide exculpatory evidence and another misrepresented facts to a judge!  Of course, I don’t condone that but how can we take out gangsters if we are in constant fear of being second-guessed by the State Bar!  And I am running for attorney general next year!”

“Yes, withholding exculpatory evidence violates the Supreme Court’s holding in Brady v. Maryland (1963) 373 U.S. 83, providing that a criminal defendant is constitutionally entitled to it.  But it also violates Cal. Rule Prof. Conduct 5-220, forbidding an attorney from suppressing evidence that the attorney or client has an obligation to produce.

“Besides Earl, I know the standards you set in your office.  Are the State Bar’s standards really higher than your own?  You are a tough prosecutor but you believe in fair play and the Constitution.  You know, Earl, but you would make a hell of good judge.”

trouble

The line went silent.  Rain drops tapped at the window.  Finally, he spoke.

“Thanks. McCoy.  That puts it in perspective for me.  But forget that judge stuff, I am going to be attorney general, and then Governor and then President!  You are the one who should be a judge and you might have been if you had played ball.”

“Maybe in some other world, Earl.  As for you, you never know where the Fates of politics will take you.”