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.










Wish You Were Here!

Pages from 75th-Anniversary

San Francisco Lawyers Celebrate the New Integrated Bar 1927

There are many things in life that you don’t appreciate until you no longer have them. The State Bar Annual Meeting may soon be one of those things.  Attendance at the Annual Meeting has apparently declined to the point where some are questioning whether to even keep putting it on.  In the old days, the Annual Meeting was a chance for many, if not most, California lawyers to get together, bond, and pat themselves on the back.  Somewhere in the bowels of the State Bar’s Library lie the bound volumes of the proceedings of these meeting, including a 1930’s State Bar President’s proud boast that the “discipline problem has almost been solved” or words to that effect.

We’ve come a long way and the State Bar Annual Meeting is showing its age at 89. Many important State Bar events still revolve it around it, such as the swearing in of the new board of trustees by the Chief Justice and many important committee meetings, like the Rules Revision Commission meeting I sat in on for a short time today.   But most California lawyers are there for the MCLE programs, which continue to be excellent, at least in my little patch of legal ethics, and maybe a chance to enjoy themselves.  This year’s annual meeting is in my hometown of San Diego and occupied most of one harborside hotel.  By contrast, the Annual Meeting I attended here in 1997  required much of the convention center and two large hotels.  For the first time this year, the MCLE programs were streamed over the internets, a concession to modernity that might hasten the Annual Meeting’s decline.

The President’s Luau was canceled this year under the new State Bar alcohol policy, adopted under pressure from the Assembly Judiciary Committee.  Best not to look too much like a trade association, like a bunch of cartoon conventioneers in funny hats gulping champagne or whatever.  Whether the State Bar is formally disunified or not, it is consciously purging itself of much that smacks of a bar association.

It is clear most lawyers don’t really understand what is going on.  I conducted an informal survey of a score or so of lawyers at the State Bar about the current controversy over disunification of the State Bar.  Only about half of the lawyers I talked to said that they were following it closely.  The vast majority, about 90%, supported continuing the unified bar.  Which is to be expected.

It was a beautiful day in San Diego today.  I tried to appreciate the Annual Meeting today for what it is still is, a chance to stroll around and run into old colleagues, friends and make some new acquaintances. A chance to enjoy some comradery and learn from each other.  There is still a place for that in our profession.


Compromise on State Bar Disunification?


As we wait to see how the California Supreme Court reacts to the State Bar’s request for a special assessment to fund its operations, it is worth considering a possible compromise between complete deunifcation of the State Bar and the status quo: carving out just the discipline components of the State Bar, the Office of Chief Trial Counsel and State Bar Court, as independent entities within the judicial branch. Maintain the unified State Bar of California for everything else. No more question about whether lawyers have their thumb on the scale when it comes to discipline and the State Bar continues to do its good work on access to justice issues. It seems like such an obvious solution that you have to ask yourself why anyone would be against it.

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.






“The Night Of” the On-Screen Lawyers

Finished with “The  Night Of” and disappointed at the conclusion.  It set up some very interesting characters,  especially seedy lawyer Jack Stone,  world-weary prosecutor Helen Weiss, enigmatic detective Sgt. Box, and saturnine inmate king Freddy,  But the series squandered its promise in inept courtroom scenes and an implausible ending that might have come from Frank Capra.

I’m not the only one disappointed in this series.  One observer, citing the numerous ethical lapses on the part of all the lawyers involved in the story, observed that “virtually all TV and film involving lawyers portrays them as the essence of evil or foolishness. ”

That  may be true now but it wasn’t always  so.  Unsavory lawyers go back to Dickens and earlier but for a brief period within living memory, films and television had many positive portrayals of lawyers.  This era seems to have begun in the late 1950’s and run its course until the Watergate era.  Raymond Burr’s “Perry Mason” probably doesn’t count since he really wasn’t a lawyer but within a few short years we had  Jimmy Stewart’s conscientious Paul  Biegler in “Anatomy of  Murder” (1959),  Charles Laughton’s stylish Sir Wilfred Roberts in “Witness for the Prosecution (1957),  Gregory Peck’s saintly Atticus Finch in “To Kill a Mockingbird” (1962),  and E.G. Marshall in “The Defenders” as Lawrence Preston between 1961-1965.  Jose Ferer’s Barney Greenwald in “The Caine Mutiny”  (1954) doesn’t quite fit the seeming trend of positive lawyer images;  Greenwald has no hesitation about torpedoing Captain Queeg even if he feels rotten about it.  Andy Griffith folksy  “Matlock” (1986-1995) would seem to work against this idea, but it always felt it was about Andy Griffith, rather than lawyering.  When you consider such bleak works as “And Justice For All” (1979) and “The Verdict” (1981), it’s hard not to see the beginning of trend toward rather dark images of lawyers in film and TV  beginning in the late 1970’s, despite possible outliers like Matlock, Tom Cruise’s Lt. Kaffee in “A Few Food Men” (1992).  I would argue the  “LA Law” (1986-1994) and most of its progeny, including David E. Kelley’s oeuvre,  fits firmly within this growing trend toward “evil or foolishness”.

Of all the positive portrayals of lawyers during this brief era of good feeling, perhaps none is so little remembered now or so lightly regarded then as the short -lived  series “The Young Lawyers” which ran from 1969-1971, on ABC, naturally.  Earnest young idealistic lawyers serving justice by working at the Neighborhood Legal Office.  Pre-Watergate, pre-Bates v. Arizona, just at the beginning of the Golden Age of Lawyering.  Obviously pitched toward the evanescent youth market, it was just a  little  too earnest to be terribly interesting.   From our perspective, the most interesting part is that enough people found it sufficiently interesting to keep  on the air for three seasons.  Many young lawyers in real life were working in similar circumstances to earnestly help people, and many of the young lawyers continued to do so even to  this day.  But the public’s attention moved on. l

But the public’s attention moved on. Unfortunately, evil and foolishness usually create more dramatic possibilities than good works and the fight for  justice. Real events involving lawyers at the highest level soon provided drama that far outstripped any mere fiction.   Massive growth in number of  lawyers,the unprecedented growth in lawyer income, both facets of the commodification of the law business,  obscured the idealism that still motivates many lawyers.

I don’t expect to see the 21st century’s Atticus Finch on the screen anytime soon.  We have all gotten too cynical for that.  There is room for stories with heroes and lawyers can be heroes, too.  “The Night Of” strained for some heroic moments in Jack Stone’s seeming transformation into Clarence Darrow  but it just didn’t seem real after all the effort to make him pathetic.   Weiss’s moment of seeming redemption at the end seemed just as false.  I applaud that effort but note the third lawyer involved is in the Khan case is effectively damned beyond redemption, a victim of in the series most exploitative and disappointing sub plot.

Still, in an era where hundreds of television series are created a year, it’s entirely possible that we might be surprised with with a great positive lawyer movie or TV series, our equivalent of “Anatomy of a Murder” “The Defenders”  or even “The Young Lawyers.”  Something you could not anticipate.

Stranger Things have happened.








State Bar: Situation Normal

The California Legislature has adjourned without passing a bill authorizing the State Bar of California to assess fees against its members.   The spotlight now shifts to the California Supreme Court, which will be asked to order a special assessment of fees as it did in 1998 after the Legislature was unable to reach agreement on a fee bill in the wake of Governor Wilson’s veto of the fee bill in 1997.  There is still a chance that both Houses could reach agreement and pass urgency legislation when they come back into session in December 2016, as they did after Governor Schwarznegger vetoed the fee bill in 2009.  But the issues that must be bridged are much, much deeper than they were then

One might be forgiven for yawning.  For the troubled dysfunctional institution that is the State Bar of California, chaos and uncertainly have become situation normal.   The 30+ year history of dysfunction has been well documented in all its many facets.  It is hard to think of another vital government function that has been through such a turbulent history.   As GITPITF asked in its last report:  “what explains the inability over many years to resolve clearly identified on-going concerns?”

Part of the answer lies in the contradictory nature of legal profession.  Most lawyers now are private actors in  capitalist economy, delivering a commodity called legal services for a fee.  Traditionally, though, lawyers were regarded as at least quasi-government officials who, in the beginning and for many centuries were actually forbidden from receiving fees (as noted by Mary Beard in her excellent book on ancient Rome, the cradle of our legal system, SPQR).  Their cause was justice; accepting money sullies it.  This tradition girds the rather complex system of ethical rules that the State Bar enforces, as well as the idea that these quasi-governmental officials still have a obligation to provide that at least some of that commodity for free (see ABA Model Rule 6.1. )  Part of the disagreement between the Assembly and the Supreme Court is the extent to which the State Bar (or whatever might succeed it) should focus on its role as a government regulator of the providers of this commodity, or whether it should embrace the broader, older vision of the self-policing guardians of justice.


Thus the debate over how expansive the definition of “public protection” should be.  Senate Bill 846, the Senate’s ultimately unsuccessful answer to Assembly Bill 2878,  would have amended the Business and Professions Code to add new section 6001.1 to define “public protection” as

6001.1. (a) Protection of the public shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever While the State Bar has jurisdiction over a broad array of important legal functions, whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
(b) Because protection of the public requires that legal services are provided in a competent, accessible, and ethical manner and that the judicial system functions in a fair, impartial, and just manner, protection of the public is defined as the core regulatory function of the State Bar in the following order of priority:
(1) Attorneys shall be competent and ethical and comply with all state and federal laws, as well as all standards of professional conduct developed by the State Bar.
(2) Appropriate discipline shall be imposed upon attorneys who fail to comply with those standards and appropriate legal sanctions shall be imposed upon nonattorneys who attempt to practice law without a license.
(3) Competent and professional legal services shall be equally available and delivered without regard to income.
(4) The legal profession shall represent the broad diversity of California.

By contrast,  the other ultimately unsuccessful fee bill AB 2878 was amended to remove similar language:

SEC. 2.Section 6001.1 of the Business and Professions Code is amended to read:

(a)Protection of the public shall be the highest priority for the State Bar of California and the board of trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.

(b)Protection of the public requires that professional legal services are provided in a competent, accessible, and ethical manner and that the judicial system functions in a fair, impartial, and just manner. For purposes of staffing and resource allocations, protection of the public is defined as the following core functions of the State Bar in the following order of priority:

(1)Administration of the bar admissions and law school accreditation processes, recordkeeping and licensing functions, and the lawyer discipline system.

(2)Administration of programs that advance professional competence and ethics, support the prevention of discipline problems before they occur, address the unlawful practice of law, and support the judicial selection process.

 (3)Administration of programs that support the fair and equal administration of justice, effective functioning of the legal system, and diversity of the profession.
The Supreme Court very much wants to keep the State Bar in the business of delivering justice, as opposed to merely regulating the providers of legal services.  The problem is that this expansive definition allows the State Bar endless opportunities to engage in “mission creep” at the expense of losing focus on the core function of regulation.  But that is exactly what some “stakeholders” want: the paternalistic vision of the original unified State Bar of California that could do just about anything “pertaining to he advancement of the science of jurisprudence or to the advancement of the administration of justice” in the charmingly naive language of Business and Professions Code section 6031, which also finds no contradiction in including within that definition “all matters that may advance the professional interests of the members of the State Bar”.  Trust us, we’re lawyers!
It is hard to see how this schism can be ever be bridged.  Former Executive Director of the State Bar Bob Hawley, who knows more about this peculiar institution than any other person in earth, doesn’t think it can be.  He may be right; if so, we will just have to live with it.