California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2000
spacer.gif (810 bytes)
spacer.gif (810 bytes)

California Bar Journal

The State Bar of California


REGULARS

spacer.gif (810 bytes)
Front Page - January 2000
spacer.gif (810 bytes)
News Briefs
Former Unruh aide appointed to serve on State Bar board
Ardaiz, O'Leary named jurists of the year for '99
Judicial Administration fellowships
Public law section online library
Board meets Feb. 4-5
51.2 percent pass July '99 bar exam
Board hires search firm for new bar chief
Litigation section offers MCLE week in legal London
spacer.gif (810 bytes)
Trials Digest
spacer.gif (810 bytes)
From the President - Reciprocity reform: The future is now
spacer.gif (810 bytes)
Opinion
For most Americans, our system is a failure
Ethics 2000: On target, or lost in space
Letters to the Editor
spacer.gif (810 bytes)
Public Comment
spacer.gif (810 bytes)
MCLE Self-Study
Of Counsel: Avoiding Conflicts
Self-Assessment Test
MCLE Calendar of Events
spacer.gif (810 bytes)
Important Information About Your 2000 Membership Fee
spacer.gif (810 bytes)
You Need to Know
spacer.gif (810 bytes)
Appointments
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
spacer.gif (810 bytes)
Discipline
Ethics Byte - Warding off the foul tort in a new year
Bankruptcy attorney disbarred after abandoning clients
Attorney Discipline
Important Information About Your 2000 Membership Fee
spacer.gif (810 bytes)

Introduction

The State Bar of California is a unified bar, in which membership and fees are compelled by State law as a condition of practicing law.  Annual membership fees are used to finance the State Bar’s broad statutory mission to advance the science of jurisprudence and to promote the administration of justice. The bulk of the State Bar’s activities are related to admission, discipline, and regulation of attorneys and to other programs that enhance lawyer ethics and competence or improve the quality of legal service and the justice system. The State Bar has engaged in such functions as administering the bar examination, formulating rules of professional conduct, disciplining members for misconduct, administering mandated continuing legal education requirements, conducting a variety of education programs for members and the public, studying and recommending changes in legislation, cooperating with the Judicial Council, providing various member services and facilitating relations among national, regional and local voluntary bar associations.  Pursuant to statute, the State Bar also administers the Client Security Fund, the Legal Services Trust Fund and the Commission on Judicial Nominees Evaluation and assists the California Law Revision Commission and other governmental agencies.

The constitutionality of a unified bar was first upheld in Lathrop v. Donohue (1961) 367 U.S. 820 [81 S. Ct. 1826, 6 L.Ed.2d] and affirmed in Keller v. State Bar of California (1990) 496 U.S. 1 [110 S. Ct. 2228, 110 L.Ed.2d 1]. In Keller, the U.S. Supreme Court addressed the unanswered question in Lathrop of whether mandatory bar membership fees may be used to support those activities which are political or ideological and with which a member disagrees. The Supreme Court held that the State Bar may constitutionally use mandatory fees for expenditures that are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal service available to the people of the state, including those with “political or ideological coloration” (such expenditures are hereinafter referred to as “chargeable”). However, objecting members may not be compelled to pay for the expenses of activities having “political or ideological coloration” which are not reasonably related to the advancement of such goals (such expenditures are hereinafter referred to as “nonchargeable”).

The Supreme Court indicated that the procedures outlined in its decision in Teachers v. Hudson (1986) 475 U.S.292 [106 S. Ct. 1066, 89 L.Ed.2d 232] would accommodate objecting members. In past years, this procedure was governed by the provisions of Article IA of the Rules and Regulations of the State Bar (“Article IA”). However, due to the inapplicability of some provisions of Article IA in light of the forward-looking restrictions which have been placed on the State Bar’s legislative and related activities in SB 144 (Stat. 1999, ch. 342), as well as changes in the Bar’s budget and funded programs due to the State Bar’s recent funding crisis and reduced funding under SB 144, the Board suspended Article IA and instead adopted interim procedures. The procedures, which have been adopted by the Board of Governors of the State Bar on an emergency basis and are printed below, follow the due process requirements set forth in Hudson for the collection of compulsory fees: (1) adequate explanation of the basis of the fee; (2) reasonably prompt opportunity to object and have objections heard before an impartial decision-maker; and (3) escrow of amounts reasonably in dispute pending adjudication of the challenge.

Availability of “Lobbying Deduction” in 2000 Membership Fee

Pursuant to its Hudson procedures, the Board of Governors has reviewed the budgeted activities of the State Bar for 2000 and determined that all of the planned activities are chargeable to the annual membership fee. In addition, the Board determined that each of the seven legislative proposals that it adopted for 2000 are chargeable to the annual membership fee. The interim procedures provide that, if the Board of Governors adopts additional legislative positions, the State Bar will publish a listing of these positions including the Board’s determination as to whether the positions are chargeable and provide members an additional opportunity to challenge. A description of budgeted State Bar activities for 2000 and a description of the Board of Governors’ legislative program appears in the following section, “Descrip-tion of State Bar Programs for Year 2000.” Although the Board of Governors has determined that all planned activities are chargeable to the annual membership fee, pursuant to the provisions of 6140.05 of the Business & Profes-sions Code, any member who elects not to support lobbying and related activ-ities by the State Bar outside of the parameters established in Keller has been given the opportunity to deduct $5 from their 2000 membership fee (“Lob-bying Deduction”).

Challenges To Chargeable Expenses And Their Calculation

The State Bar’s interim Hudson procedures provide members the opportunity to dispute the accuracy of any of the determinations by the Board of Governors that a State Bar activity is chargeable on the grounds that a challenged activity has political or ideological coloration and is not reasonably related to the State Bar’s purpose of regulating the profession or improving the quality of legal service to justify the use of mandatory fees. (A member who wishes to make such a challenge is hereinafter referred to as “challenger”). A challenger must make his or her challenge individually and in writing. The written challenge must include the challenger’s name, address, telephone number and bar membership number and should identify the challenged activity or legislative position. A challenger must sign the challenge, postmarked on or before February 17, 2000, which is the 45th day following the publication date of this issue of the California Bar Journal, or delivered in person to the State Bar’s San Francisco office by 5:00 p.m. on or before February 17, 2000, the 45th day following the publication date of this issue of the California Bar Journal. Challengers are still required to submit payment of the 2000 membership fee less only the Lobbying Deduction.

IMPORTANT!

ANY WRITTEN CHALLENGE MUST BE MAILED OR DELIVERED BY THE DEADLINE TO:

JEFFREY T. GERSICK
ACTING EXECUTIVE DIRECTOR
THE STATE BAR OF CALIFORNIA
180 HOWARD STREET
SAN FRANCISCO, CALIFORNIA 94105-1639

THE DEADLINE IS FEBRUARY 17, 2000, WHICH IS 45 DAYS
FROM THE DATE OF PUBLICATION OF THIS ISSUE
OF THE CALIFORNIA BAR JOURNAL.

Upon receipt of a properly submitted and timely challenge, the State Bar shall place the disputed amount of the challenger’s fee in an interest-bearing escrow account.

At its next regularly scheduled meeting following the deadline or as soon thereafter as the matter may be considered, the Board of Governors shall decide whether to give a pro rata refund to the challenger or to submit the dispute for expeditious arbitration before an impartial arbitrator.

If the dispute is submitted for arbitration, the Board in its discretion may consolidate all challenges. The challenger(s) and the State Bar may select a mutually agreeable, impartial arbitrator. In consolidated challenges, the arbitrator may be selected by an agreement between the State Bar and 75 percent of the challengers. If there is no agreement on an impartial arbitrator within 30 days following the decision to arbitrate, an impartial arbitrator will be appointed by the American Arbitration Association. The State Bar may extend the time to select the arbitrator, not exceeding an additional 30 days. The arbitration shall be heard at the San Francisco or Los Angeles office of the State Bar, as determined by the State Bar. The proceedings shall be informal in nature, and the State Bar shall have the burden to show that the disputed matters are within the scope of permissible activities for which mandatory fees may be used under the constitutional standard in Keller. The challenger(s) will be given an opportunity to present their own evidence and to present written arguments in support of their challenge(s). The arbitrator will issue a written decision and award.

Description of State Bar Programs for Year 2000

Discipline and Adjudication: The purpose of the Discipline and Adjudication program is to protect the public by regulating the conduct of California lawyers.

a. Enforcement

Receive, review and analyze incoming communications which relate to disciplinary inquiries, criminal convictions and complaints against attorneys.  Categorize complaints by type for appropriate actions by way of referral to investigation and prosecution; mediation; or referral to other entities (Bus. & Prof. Code, 6043, 6044, 6044.5, 6049, 6092.5 subd. (f) et seq.).  Investigate allegations of unethical and unprofessional conduct against attorneys who may have violated provisions of the State Bar Act, Rules of Professional Conduct or other standards of professional conduct.  Prosecute attorneys in formal disciplinary hearings in the State Bar Court for violations of the State Bar Act or Rules of Professional Conduct.  Activities include, as appropriate, the preparation of formal disciplinary pleadings, conduct of formal and informal discovery, and representation of the State Bar as Trial Examiners in the actual hearings and subsequent review proceedings (Bus. & Prof. Code, 6043, 6044, 6049, 6077, 6078, 6092.5 et seq.).

b. State Bar Court

Adjudicate formal disciplinary matters resulting in the final imposition of discipline or, in certain instances involving suspension or disbarment, the recommendation of discipline to the California Supreme Court (Bus. & Prof. Code, 6086.5, 6086.65; Cal. Rules of Court, rules 952, 953, 954).

c. Client Security Fund

Receive, evaluate and process applications made to the Fund by persons who have suffered monetary losses due to dishonest conduct of lawyers and authorize recovery to eligible clients out of funds collected for this purpose (Bus. & Prof. Code, 6140.5).

d. Fee Arbitration

Administer a statewide program for arbitrating fee and cost disputes, and arbitrate those disputes that are not within the jurisdiction of an approved local bar association program (Bus. & Prof. Code, 6200).

e. Competence

Maintain and improve the standards of the legal profession to enhance attorney competence through: (1) promulgating and strengthening professional standards to protect the public; (2) assisting members to comply voluntarily with such standards (e.g., Ethics Hotline, California Compendium on Professional Responsibil-ity, Lawyers Personal Assistance Program); and (3) planning and development of programs to enhance attorney competence (Bus. & Prof. Code, 6076, 6077).

Administration of Justice: The purposes of the Administration of Justice program are: (1) to administer the work of the Commission on Judicial Nominees Evaluation as mandated by Government Code 12011.5; (2) to improve the quality and delivery of legal services available to the people of the State; and (3) to aid in the advancement of the science of jurisprudence and improvement of the administration of justice. This program provides specialized professional advice, analysis, studies and information to the judicial, legislative, and executive branches of government.

a. Research and Court Reform

Provide assistance to State Bar efforts to improve court rules, procedures, structures, and staffing and to coordinate these efforts with the Judicial Council, Administrative Office of the Courts, California Judges Association, California Law Revision Commission and other entities involved in court improvements.  Provide staff support for Standing Committees on Administration of Justice, Appellate Courts, Federal Courts, and Alternative Dispute Resolution (Cal. Const. Art. VI, 6; Bus. & Prof. Code, 6031, Gov. Code, 8287).

b. Commission on Judicial Nominees Evaluation

Serve as liaison to the Governor’s Office and administer the work of the Commission which evaluates the qualifications of judicial candidates whose names are submitted by the Governor (Gov. Code, 12011.5).

Governance: The purposes of the Governance programs are to govern and manage the activities of the State Bar.

a. Board of Governors

The Board of Governors is charged with the executive function of the State Bar and the enforcement of the provisions of the State Bar Act. (Bus. & Prof. Code, 6030.)

b. Legislation for the Board of Governors

Provide technical assistance to legislators, legislative staff and committees, testify at hearings, and forward or draft letters of support/opposition on certain bills relating to either regulating the legal profession or improving the quality of legal services. A list of legislative proposals approved by the Board of Governors for the year 2000 appears below.  Monitor bills by reviewing legislative measures and amendments (Bus. & Prof. Code, 6031).

i. Enforcement of Judgments: Renewal of Judgment Lien on Personal Property
Amends Code of Civil Procedure 697.510 and 697.670 to allow judgment liens on personal property to be renewed for additional five-year periods.

ii. Arbitration: Dismissal For Delay In Bringing Claim
Amends Code of Civil Procedure 1292.6 to add a five-year time limit for commencing arbitration under Title 9 (contractual arbitration).

iii.  Discovery: Motion to Compel Further Responses
Recommends that the Judicial Council amend Rule 335(a) of the California Rules of Court to allow a court to retain jurisdiction to hear a motion to compel even if supplemental responses have been served during the pendency of the action.

iv.  Unlawful Detainer: Service by Court Clerk Instead of Non-Party
Amends 1013(a) of the Code of Civil Procedure to permit service of a responsive pleading in unlawful detainer actions by the court clerk.

v. Landlord/Tenant: Security Deposit
Amends Civil Code 1950.5 to eliminate the use of double negatives in its text.

vi. Mechanic’s Liens: Petition to Remove Untimely Filed Liens
Amends Civil Code 3154 to expand the expedited procedures to expunge mechanic’s liens that are untimely filed.

vii.  Probate: Stay of Judgment on Appeal
Amends Probate Code 1310 to allow money judgments in probate cases to be stayed on appeal in the same manner as civil money judgments.

Administration of the Profession: The purposes of the Administration of the Profession program are: (1) to provide and promote statewide competence education programs; (2) to assist others in providing and promoting statewide competence education programs; (3) to protect the public through the operation of certification programs; and (4) to maintain membership records and manage member billings.

a. Certification/Legal Education

Establish effective, affordable and accessible Minimum Continuing Legal Education (“MCLE”) programs for California lawyers and develop and implement a comprehensive program to assist others in establishing effective, affordable and accessible MCLE programs for California lawyers (Bus. & Prof. Code, 6070, Cal. Rules of Court, rule 958). Develop standards for certification programs (e.g., Law Corporations, Limited Liability Partnerships, Practical Training of Law Students, Foreign Legal Consultants, MCLE,) and efficiently administer such programs (Bus. & Prof. Code, 6070; Cal. Rules of Court, rules 958, 983, 988).

b. Membership Records and Billing

Maintain member records, prepare member fee statements and monitor billing.  (Bus. & Prof. Code, 6002.1, 6140, 6140.05.)

Program Development: The purpose of the Program Development program is to provide assistance in the delivery of civil legal services to the public, by working with legal services providers and bar associations to provide a variety of public service programs, including: pro bono legal services programs, lawyer referral services, pro per clinics, community-based dispute resolution centers, programs to improve access to the courts, and fee arbitration programs. The program also provides limited staff support to the California Young Lawyers Association and the State Bar’s access and fairness standing committees.

a. Program Development

Provide technical assistance and support to bar associations and legal services programs to develop or expand the availability of legal services to low- and middle-income people in the State. Program development activity focuses on promoting pro bono publico efforts, lawyer referral services (“LRS”) and dispute resolution programs (Bus. & Prof. Code, 6068, subd. (h)).

b. California Young Lawyers Association

Foster a greater understanding of, and encourage interest among, recently admitted and young lawyers in the programs and activities of the State Bar. Provide a forum for the exchange of ideas in order to assist the State Bar in its programs (Bus. & Prof. Code, 6013, 6013.4).

c. Access & Fairness Standing Committees

Work to increase participation in the administration and governance of the State Bar’s programs and activities of attorneys who have been under-represented, such as women, ethnic minority, gay, lesbian, and attorneys with disabilities.

Communications: The purpose of the Communications program is to provide information to the public and membership about the State Bar, law, lawyers and the legal system.  The objectives within the communications function are: (1) to promote increased public awareness and understanding of the law; (2) to provide ongoing information to the news media about the State Bar, law, lawyers and the justice system; and (3) to publish newsletters, brochures, and other materials offering timely information about the State Bar, its activities and programs, educational opportunities, topical legal issues and general developments in the practice of law or law-related activities and organizations (Bus. & Prof. Code, 6092.5, subd. (h)).

Administrative Overhead: General and administrative expenses are incurred to provide staff and operational support to all programs and activities of the State Bar in the following areas: human resources; finance; financial planning and analysis; data processing operations and development; printing; purchasing; building management; law library and archives; mail; and legal counsel and advice.

INTERIM PROCEDURE RE: ANNUAL MEMBERSHIP FEE, CHARGEABLE AND NONCHARGEABLE AMOUNTS, REDUCTION, APPEALS

Section 1.  Reduction of Annual Membership Fees for 2000

A. Section 6140.05 of the Business and Professions Code provides that each member of the State Bar shall be provided the option of deducting five dollars ($5) from the annual membership fee if the member elects not to support lobbying and related activities by the State Bar outside of the parameters established by the United States Supreme Court in Keller v. State Bar of California. The Board of Governors has reviewed the State Bar’s budgeted activities for the year 2000 and determined that all of the planned activities, other than legislative activities, are chargeable to the annual membership fee. Therefore, the Board of Governors set the advance reduction available to members at five dollars in accordance with the provisions of 6140.5.

B. The January issue of the California Bar Journal shall contain an explanation of the 2000 membership fee and the basis for the advance reduction approved by the Board of Governors. This notice shall contain a general description of State Bar activities for 2000 and a listing of the legislative program adopted by the Board of Governors, including a determination regarding whether each legislative proposal falls within the parameters established by Keller.

C. If the Board of Governors adopts additional legislative positions during the course of 2000, the State Bar shall publish a notice listing these legislative positions and including a determination regarding whether each legislative proposal falls within the parameters established by Keller. The notice shall be published in the California Bar Journal, in the issue immediately following the board meeting at which the legislative position(s) were adopted.

Section 2.  Objection to Advance Reduction.

A. Any member may, within 45 days of the date of publication of a notice in the California Bar Journal, file with the Acting Executive Director of the State Bar a written objection to the designation of a State Bar activity or legislative position as chargeable. The written objection must be made individually and separately, shall state the challenger’s name, address, telephone number, bar number, and the activity or legislative position that is the subject of the objection. The objection shall be served on the Acting Executive Director at the main office of the State Bar at 180 Howard Street, San Francisco, California. Objectors must make full payment of their annual membership fee less only the advance reduction. Written objections must be postmarked in an envelope correctly addressed to the Acting Executive Director or personally delivered to the State Bar’s main office on or before the 45th day following the publication date of the California Bar Journal. Failure to timely comply with the requirements of this section shall constitute waiver of any right to object. Failure to make full payment of membership fees minus only the advance reduction may subject the member to a late payment assessment and other penalties provided for in section 8, article I, of these rules and in 6143 of the Business and Professions Code.

B. After a written objection has been timely received, the State Bar shall promptly place the amount of the objector’s membership fee in escrow in an interest bearing account pending determination of the objection. The escrow amount need not include the portion of the membership fee for those activities that no dissenter could reasonably challenge. If the State Bar in its discretion elects to place less than 100 percent of the challenged amount in escrow, such escrow amount shall be independently audited. The provisions of this section do not apply to requests for refund under section 3.

C. At its next regularly scheduled meeting following the applicable deadline for timely receipt of an objection or as soon thereafter as the objection may be considered, the Board shall decide whether to remit part or all of the escrow amount to the objector and/or to refer the objection to arbitration.

The Board may determine whether to consolidate challenges.

D. After any decision to arbitrate, the objector(s) and the State Bar may mutually agree to an impartial arbitrator.  In consolidated challenges, an arbitrator may be selected by agreement between the State Bar and at least 75 percent of the objectors.  If no agreement can be reached on an arbitrator within 30 days following the decision to arbitrate, the American Arbitration Association shall appoint an arbitrator.  The State Bar may extend such time to reach an agreement, not to exceed an additional 30 days.

E. Arbitrations shall be heard at the San Francisco or Los Angeles office of the State Bar, as determined by the State Bar. 

F. The issue for arbitration shall be whether the challenged activity or legislative position is germane under the standard set forth by the United States Supreme Court in Keller v. State Bar 496 U.S. 1 (1990). 

G. The arbitration shall be expeditious, fair, and informal in nature.  The State Bar and objector(s) may offer such evidence as they desire and shall produce additional evidence as the arbitrator may deem necessary to an understanding and determination of the issue. The arbitrator shall judge the relevance and materiality of evidence offered, and conformity to the rules of evidence shall not be necessary.   The arbitrator may receive and consider evidence of witnesses by declaration or affidavit.

H. The arbitrator shall issue a final written decision no later than 30 days after submission of the final post-arbitration briefs. If the decision of the arbitrator concludes that the challenged expenses were improperly charged to the annual membership fee, the decision shall include an award for refund of the pro rata portion of the membership fee with the interest earned as of the date the objector’s membership fees were received by the State Bar.

Section 3. Public Agency Refund Procedure

A. Public agencies which use public funds to pay the annual membership fee of their public employees will be treated by the State Bar as generally objecting to those activities as to which the issue of chargeability may be reasonably disputed.  No public agency may assert or seek to represent individual objections or the viewpoints of individual employees without the written consent of the individual public employee.

B. In the event an award is made to individual objectors as provided in section 2, such public agencies will be entitled upon timely demand, to a refund.  The amount of the refund shall be the aggregate of all awards plus interest that would have been payable to the public employees on whose behalf the public agency paid membership fees had the public employees filed individual challenges.

C. The State Bar shall maintain a list of the names and addresses of all public agencies known to the State Bar, which list shall be subject to public inspection upon reasonable notice.  Upon written request, public agencies shall be included in the list maintained by the State Bar.  If an award is made to individual objectors, the State Bar shall notify all listed public agencies of their entitlement to demand a refund.  Such notice shall be in writing and shall be given within thirty (30) days of the award to the individual challengers.

D. A refund demanded by a public agency shall be in writing and shall include: (1) the name and address of the public agency making the demand and entitled to the refund; (2) a statement that the public agency is making a refund demand pursuant to this section; and (3) a list of the names and bar numbers of all public employees whose bar fees the public agency paid with public funds.  A refund demand must be served on the Acting Executive Director at the main office of the State Bar in San Francisco, California, within sixty (60) days of the date of service of written notice by the State Bar of the public agency’s entitlement to demand a refund.

E. The provisions of this section do not relieve the public employee as a member of the State Bar of any obligations, penalties, or forfeitures under the law if the public agency fails to timely pay the public employee’s membership fee, take the advance deduction or request a public agency refund.