Alexander cuts the Gordian Knot, by Jean-Simon Berthélemy (1743–1811)
The State Bar’s Governance in the Public Interest Task Force (GITPITF) has issued its final report on the state of the State Bar.
Two reports actually, a majority report and minority report. And they could not be more different.
The majority report is an encyclopedic survey of State Bar history and culture that contains enough State Bar arcana to satisfy even the most inside of insiders. The overall effect is to confirm that the State Bar is a complicated mess of separate programs, separate funding mechanisms, different management and support structures and a governing structure that is not up to managing this tangled mess.
The majority report asks the right question (at page 6): “what explains the inability over many years to resolve clearly identified on-going concerns? ” But it doesn’t really try to answer it beyond outlining the dimensions of this Gordian knot. The majority (and the minority) recognize that the real change at the State Bar involves political determinations that can only be made by the Legislature and the Supreme Court. There is an useful compendium of issues that need to be considered but no final recommendations beyond some fairly incremental and revealing changes.
The minority report is something else again, a cri de cœur that seeks the very heart of the problem in the fundemental conflict between the roles of the State Bar as trade association and as government regulator. This conflict can only be solved by dis-unification. The minority advocates for this solution and doing it in blunt and emotional terms.
In part that might be because the majority are, in their dry way, advocating against disunification, even as they acknowledge (at page 25) that “a gowing body of thought posits that coupling regulatory and trade associational functions in one organization weakens both and serves neither the public nor the legal profession well.” The majority then spends a couple pages throwing as much cold water as it can on the dis-unification concept before concluding that the “new approaches now underway a chance to bear fruit first before deciding whether to embark on the large and uncertain change that de-unification would represent” at the bottom of page 27.
Of course, it is appropriate to look at the downside of disunification. But the cold water that the majority seeks to use to douse disunification fever is cool at best. The majority seems to imply that the Calfornia bar’s large size and uniquely complicated structure make disunification problematical. In fact, it is that uniquely complicated structure, the result of decades of “missions creep” as various “stakeholders” grafted their causes on to the State Bar (see page 15) that compels disunification. Indeed, the majority itself makes the case for disunification:
Successful mission execution depends on clarity of structure, function and governance; unless these three are well-aligned, routine business operations, let alone organizational reform efforts, are difficult if not impossible to achieve. Historically the State Bar has been a blend of two very different business models: an independent government regulatory body and a professional membership association. There is an inherent tension manifested in this duality which can be seen in a number of ways.
The measures proposed by the majority acknowledge this truth but back away from the obvious implication that, in light of decades of dysfunction and decades of discussion of that dysfunction, only disunification can bring about necessary clarity to this mess.
One recommendation adopted with only a dissenting vote is for the appointment of limited term discipline monitor. This concept was tried before when Prof. Robert Fellmeth of the Center for Public Interest Law (CPIL) served the Legislatively appointed discipline monitor between 1987 and 1993. Prof. Fellmeth’s job was both to make recommendations and monitor the implementation of those recommendations. It is unclear from the majority’s recommendation exactly how broad the powers of this monitor would be. The recommendation itself is a frank acknowledgement of the lack of trust the Legislature and others have in both the State Bar’s management of the discipline system and the information reported by the State Bar about the discipline system. Presumbly, the discipline monitor would verify that the “new approaches” are working.
The other big change is yet another governance change to the Board of Trustees to eliminate Trustees elected by the members of the State Bar, and move to a Board entirely appointed by the three branches of government. The hope is that eliminating elections will finalize send the message that this is not a “bar association” but a government agency and bolster public confidence in the State Bar. It is step long overdue. Bar “democracy” has long been a joke anyway because of low turnout in Trustee elections, with the concommitant problem that small factions of local lawyers, like the notorious “Breakfast Club” more or less control who gets elected. As inside the State Bar as the majority report is, the minority report goes even more inside in decrying the baleful influence of “the Los Angeles delegation” (Minority report at page 11.) Appointed members and other governance changes are intended to remove State Bar politics from the Trustees agenda.
The concept of a public member majority, as proposed in the Assembly version of the fee bill currently stewing in the Senate, is no where in sight. And given the Supreme Court’ recently announced opposition to a majority public member board, that certainly seems politic.
Beyond this we have common sense management reforms (pages 28-30) and the perennial call for better Trustee orientation and training. The majority understand (at page 29) that “here is a need for the Bar to operate as a coherent, consistent organization” but they place their hope for that in incremental solutions.
The majority is content to continue to pull at the threads of the Gordian knot in the hopes that we can make it somewhat less confused and more focused. The minority emotionally advocates striking directly at the root of the problem. The two reports roughly mirror the current discussion that must be going on even now among the Assembly, the Senate, the Supreme Court and the Governor. My sympathies are with the minority; nothing less than major surgery is going to create the “coherent consistent organization” capable of discharging the public protection mission of the discipline system to the degree the citizens of California deserve.
But just as importantly, nothing but major surgery to separate these conjoined twins will free California lawyers to advocate in their own interest. This important point isn’t addressed by the majority, except peripherally in referencing the idea that a unified bar is necessary to keep California lawyers interested in providing legal services to the disadvantaged.
GITPITF’s final gasp is comes as we have reached the endpoint of State Bar’s naval gazing, that now the battle has shifted the other significant axis of dysfunction, divided responsibility of lawyer regulation, the conflict between the California Supreme Court and the Legislature, a battle that has now come out into the open. Important political decisions have to be made about who is in control. There is no indication that those decisions will be made anytime soon.