California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2002
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - March 2002
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News / News Briefs
Midyear meeting will focus on fairness
E-briefs offer bar updates
Three strikes supporter has a change of heart, now wants the law restricted
ABA seeks nominations for three awards
Rule change proposed to protect government whistleblowers
More pamphlets added, translated
Innovation garners awards for 11 courts
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Trials Digest
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Public Comment
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Opinion
From the President - New era of bar-conference cooperation
Conference of Delegates: A valuable ally
PG&E's plan: A power play
Letters to the Editor
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You Need to Know
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Discipline
Ethics Byte - Twilight zone cases can make practice tricky
Former deputy DA, convicted of grand theft, is suspended
Attorney Discipline
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MCLE Self-Study
At tax time, modify debt with caution
Self-Assessment Test
MCLE Calendar of Events
Conference may gain its independence from State Bar
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Continued from Page 1
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liable for their activities," he said.

He suggested a model like the Foundation of the State Bar, a separately incorporated non-profit organization with its own board and governance which, although independently funded, still collects donations through the bar, has office space at bar headquarters and is allowed to use the State Bar name.

"We would contract with them," Babcock said. "If we come up with a reasonable approach and it's clear the bar can provide enough support to them, I think they'll do it." He said he hopes a change might happen by the fall.

Bar President Karen Nobumoto appointed the Task Force on the Conference of Delegates when she took office in September, coincidentally about an hour after the conference rejected a hotly debated resolution to spin off from the bar. "We had spent several years in discord where the staff and the board and the conference could not see eye to eye," she said. "I felt it was important to resolve our outstanding issues and pick an arrangement we could live with."

Nobumoto said she doesn't know what the final outcome will be, but "I want everybody to figure out a way to get along and stop the backbiting."

The Conference of Delegates offers an opportunity for members of local, specialty and minority bar associations throughout the state to have a say in the law-making process in California. It has a long tradition of providing assistance to legislators by both proposing new laws or amendments to existing statutes and helping lawmakers analyze pending bills. For the most part, that advice deals with often mundane details of interest only to experts.

In recent years, however, its positions on controversial issues have been frequently perceived both in Sacramento and by many bar members as too liberal and its occasional forays into the political arena have gotten the bar into hot water. In the Keller v. State Bar of California decision, for instance, the U.S. Supreme Court pointed to a conference resolution to restrict nuclear power plants when it ruled the bar could not use mandatory member dues to support political lobbying.

Other resolutions, ranging from lifting the cap on medical malpractice judgments to legalizing prostitution and dumping the death penalty, became enough of an irritant to former Gov. Pete Wilson that he cited the conference's activities when he vetoed the bar's dues bill in 1997, a move which led to the virtual shutdown of the bar the following year.

Self-funded but limited

Part of the compromise to finally win a fee bill included a requirement that the conference be funded voluntarily, without benefit of any member dues.

Since that time, the conference has chafed under restrictions the bar has placed on it. Because it is self-funded, its members believe the group should have the freedom to take any stand it wants on proposed legislation. The bar's board of governors, however, has refused to provide that freedom and requires that all conference activities fall within the purview restrictions imposed by Keller and other court decisions.

In addition, the conference must reimburse the bar for certain services, such as collection of donations and legal analysis of legislation it wants to address.

"Unfortunately, we have not been able to recast the conference in a way that would allow them to return to an open debate of all issues confronting California law without fear that they would interfere with the security of the State Bar as a whole," said Scott Wylie, a member of the board of governors who also serves on the task force. "That has frustrated them, and I know it's frustrated the board and the staff."

Stephen L. Marsh, a San Diego lawyer who is chairman of the conference's executive committee, said it's premature to think the bar and the conference will divorce. "I don't think we're severing our relationship," he said. "It's more like a child moving into the backyard guest house. I think that's a good idea."

He acknowledged the relationship between the organizations needs clarification in light of court rulings and legislation. "They raise all these questions about autonomy and decision-making, how we spend our money and purview."

At the moment, however, Marsh said he feels the relationship between the conference and the State Bar is strong and friendly because "we haven't had a disagreement with the board about our resolutions."

Former conference chair Diane Wasznicky, who now serves on the task force, said the key issue is one of control. "Our argument is if it's our constituencies' money and they're doing work, it should be our right to regulate ourselves. We recognize there has to be some kind of regulation, but why can't we have control over what we do?"

She said delegates to the conference have felt muzzled since the Keller decision was handed down a decade ago.

And she said she understands the bar "is terrified that something we do will be reflected on them." That fear, she said, is now so ingrained that she feels it can't be changed, regardless of any reassurances the conference might try to offer.

She insisted the conference has learned it must exercise caution. "The one thing that's really clear is that the leadership of the conference is very aware there's no way we can go back to pre-Keller days. There has to be some kind of parameters, call it purview, on the discussions and debates."

Wasznicky also said there is a legitimate concern among delegates that the conference might not survive if it separates completely from the bar. "We want to have some kind of relationship," she said, "and we're exploring a contractual relationship with more independence on our part."