The Oct. 11, 1997, veto of the State Bar dues bill greatly
impaired the ability of the State Bar to address the many changes occurring in the law and
the economy that affect the practice of law. After the veto, the State Bar initially had
to focus almost exclusively on renewing our dues bill so that we could maintain the
discipline system, which is the core function of the State Bar.
Then, after passage of the dues bill, we had to spend the last year
focused on rebuilding our discipline system. But the time has now come for the State Bar
to reassert its role as an advocate for the profession.
Since the veto there have been many changes affecting the practice of
law and more change can be seen on the horizon. There are new laws that create safe
harbors for document assistants, family law facilitators and unlawful detainer assistants
(who can advise not only on UDs, but also on related bankruptcies).
The Internet now brings into California advice regarding every aspect
of the law offered by companies that are not subject to any court supervision, no
licensing requirements and which make no contribution to our discipline system.
Coming up quickly are proposals to authorize multidiscipline
practices where non-attorneys might be allowed to oversee the provision of legal services,
as well as proposals for multijurisdictional practice, where attorneys licensed in another
state would be allowed on certain terms to practice in California.
The State Bar can play a powerful part in shaping the outcome of the
debate over these issues. Because of the existence of the sections, the Conference of
Delegates and our committees, such as the access committees, the State Bar can muster the
top talent in our profession to provide considered judgment about whether a given proposal
is appropriate. Let me give one example concerning the current debate over
Sen. William Morrow has introduced legislation (SB 1782) that would
permit an attorney who has passed the bar in another state and who has had three years of
practice to practice in California without taking the bar exam. His bill is proposing a
form of comity with sister states. The concept of comity (but not the details
of how to implement it) was recommended by the Bars Commission on the Future of the
State Bar and the Legal Profession. But approving this concept does not lean inevitably to
approving this bill.
We should pursue a more modest proposal because our existing rules
concerning the bar exam serve an important public protection function. Different states have established a variety of
thresholds for the bar pass rate in their state. This can be most easily seen by comparing
the grade achieved on the Multistate Bar Exam by those who pass the bar in each state.
California does not require a specific MBE score to pass its bar exam, but the California
standard can be translated into an MBE equivalency. There are many states where those who
pass the bar have an MBE equivalency that is close to the Cali-fornia standard. But there
are some states that set a considerably lower standard. Do we really want to turn loose on
California consumers attorneys who could not come close to passing the California bar?
On the other hand, if an attorney is working in-house for a
corporation in Georgia, for example, and the corporation wants to move her to California
where her legal work would be limited to represent the corporation, why wouldnt it
be a good idea to allow her to make this move without taking the California bar exam?
Similarly, if a given state has an MBE equivalency that is close to the California MBE
equivalency rate, why not try an experiment of allowing attorneys licensed by such a state
with, perhaps, three years experience, to practice in California if they decided to move
their practice to California? We can see how this goes for a while before we try anything
I believe that, not only on the issue of multijurisdicitonal
practice, but also on many other issues, such as unauthorized practice of law,
multidiscipline practice, Internet law and the like, if the profession is given a forum
through the State Bar to marshal the evidence and the judgment of our members, the State
Bar can again be a champion for the profession.
Palmer Madden is a vice
president of the bar board and chair of its discipline and regulation committee.