From the May 2016 California Bar Journal
Board panel hears pros and cons of dividing State Bar roles
By Laura Ernde
Discussions about the future of the State Bar ramped up last month, with a bar task force receiving input from dozens of witnesses, including a proposal to separate the bar into two organizations – one to handle regulatory matters and one to house “trade association” functions.
Meanwhile, members of the Assembly Judiciary Committee indicated they want to see significant reforms of the agency this year as part of their oversight of the State Bar.
However, Chief Justice Tani Cantil-Sakauye cautioned against any hurried decisions for the organization, which is an arm of the California Supreme Court.
“A move to de-unify the State Bar, without the benefit of a deliberative process and without input from the California Supreme Court, would be an extraordinary move for the largest state bar in the world,” Cantil-Sakauye said. “Given the critical work the State Bar does in the area of access, fairness, and diversity, it would not be fair or just to the people of the state if the State Bar’s governance issues were unreasonably rushed.”
At two public hearings April 4 and 25, the Board of Trustees’ Governance in the Public Interest Task Force heard a variety of opinions on deunification, the bar’s governance structure and the implications of a recent U.S. Supreme Court decision. The group is tasked with making recommendations that will help the bar meet its primary mission of public protection. Additional meetings are planned for May 26 in San Francisco and June 14 in Los Angeles.
The task force plans to submit a report to the Board of Trustees by July. The report will then go to the Supreme Court, the Legislature and the governor.
At the April 4 meeting, Trustees Dennis Mangers and Joanna Mendoza advocated restructuring the State Bar so its regulatory functions – including attorney admissions and discipline – would be overseen by a 13-member board made up of seven non-lawyers and six lawyers. A private nonprofit would take on unspecified “trade association” functions. The proposal called for the State Bar to work out the details for implementation by January 2019.
“I want to stimulate a conversation that needs to happen. I believe that what we are proposing will inure to your benefit and that of the public,” Mangers told the task force.
Mangers also presented the proposal to the legislative committee, accompanied by a letter signed by him, Mendoza, Trustee Glenda Corcoran and former Vice President Heather Rosing. The committee approved the bar’s annual fee bill, but lawmakers said they plan to add reform language during the legislative process.
Some members of the bar’s 16 voluntary Sections have also expressed support for the idea of deunification, citing the challenges of implementing open meetings and public records rules this year. At the same time, the self-funded groups are struggling to bear the burden of increased overhead charges.
“The real question is whether the Sections can survive if things remain as they are,” Donna Parkinson, a member of the Business Law Section, told the task force. “We are losing people and we’ll lose more. There are other places where this work can be done.”
She and other business law section members have created the California Lawyers Guild to house a new statewide, voluntary organization.
However, a letter from the Council of State Bar Sections indicated that five other sections have voted against deunification. Another five sections have not voted but have expressed “grave reservations” about their viability without the bar’s infrastructure and buying power.
Former State Bar Executive Director Judy Johnson also questioned the viability of an independent statewide organization. She predicted the largest local bars in San Francisco and Los Angeles would dominate the discussion.
“United we stand, de-unified we may dissipate and lose our national standing,” Alameda County Bar Association CEO Tiela Chalmers said, clarifying she was not speaking on behalf of the association.
Other speakers expressed concern about preserving the State Bar’s efforts to increase access to justice. Some said those efforts would be diminished in a voluntary organization reliant on membership dues.
When the Nebraska State Bar Association was deunified in 2013, the organization was forced to focus on lawyer service programs to build back membership revenue, Executive Director Liz Neeley said.
“To survive, a voluntary bar must focus inward, not at the courts,” she said. “The courts and the legal system will bear the brunt of the cuts.”
Second District Court of Appeal Justice Laurie Zelon, who clarified she was not speaking for the court, said access to justice should be considered part of the bar’s public protection mission. Zelon founded the California Commission on Access to Justice, which is staffed by the State Bar.
Los Angeles City Attorney Mike Feuer argued that access to justice can’t be separated from the bar because it is “deeply embedded” in what the profession stands for.
Ted Schneyer, professor emeritus at the University of Arizona James E. Rogers College of Law, who has studied bar governance issues, said the unified bar structure has long been problematic because it creates confusion about how to regard the bar as an institution.
He described a history of tension between public board members, who view the unified bar as a regulatory agency, and lawyer board members, who see its purpose as promoting the profession.
There has been increased attention to the issue nationwide since the U.S. Supreme Court’s decision last year in North Carolina Dental Board v. Federal Trade Commission, 135 S.Ct. 1101 (2015).
The decision raises antitrust questions for regulatory organizations composed of a majority of “market participants.” The bar’s current Board of Trustees is comprised of 13 lawyer seats and six non-lawyer seats.
Robert Fellmeth, the executive director of the Center for Public Interest Law at the University of San Diego School of Law, called the bar a “walking antitrust violation.” He advocated court review of bar activities that restrain trade, including setting the pass rate for the bar exam.
At the task force’s first public hearing in February, the group heard the pros and cons of how other State Bars and regulatory agencies are organized and governed.
In California, radical changes have been proposed numerous times since the unified State Bar was created in 1927.
According to historical documents, just eight years into its existence the legislature conducted a plebiscite of attorneys on the question, “Do you favor repeal of the State Bar Act?” Attorneys voted 5,457 to 1,899 against abolishing the bar.
In the 1980s, the bar’s then volunteer system for handling attorney complaints came under intense criticism. Independent discipline monitor Fellmeth came up with a blueprint for revamping the system that led California to establish the State Bar Court. To this day, the court remains the only full-time court in the country to adjudicate lawyer disciplinary matters.
Another effort to abolish the bar came in 1996, when Sen. Quentin Kopp authored legislation calling for a vote of attorneys to abolish the unified bar. The proposal was defeated by a 2 to 1 vote.
May 2, 2016 in Bar Discipline & Process | Permalink
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