James Towery

Scare tactics, or loss of control?

As the plebiscite on the mandatory bar approaches,
members ask if the legislature will take charge of the legal profession

Each month, President James Towery answers questions from members in this column. Please address your questions to: Ask the President, California Bar Journal, 555 Franklin St., San Francisco 94102-4498 or fax to 415/561-8247. This month's question and Towery's response:

QUESTION: Isn't it true that even if the plebiscite to abolish the State Bar passes, the Supreme Court will keep control of the legal profession? Aren't you just using scare tactics to suggest the legislature will get involved in controlling lawyers?

TOWERY: No, the concern about legislative control of our profession if the plebiscite passes is not a scare tactic at all.

It is a real concern, based on the language of the plebiscite question itself, on the precedent and on the legislative process. Let me explain.

First, consider the language of the question (drafted by proponents) to be used on the plebiscite ballot: "Shall the State Bar be abolished . . . with its regulatory functions turned over to another body or bodies . . ." There is nothing in the plain language of that question to suggest we are voting on a proposition to shift control of the bar from our current structure to the Supreme Court.

In other words, if the plebiscite were to pass, the legislature could with impunity design a replacement, placing governance of the bar in any of the three branches of government.

The plebiscite question provides no guidance or limitation at all on which branch would control our fate.

Second, let us examine precedent. Every other California profession, other than lawyers, is governed by a system (designed by the legislature and signed into law by the governor) in which -- surprise -- the governor and the legislature have the exclusive appointment power of the governing boards.

All of these boards are in the executive branch. The Medical Board, within the Department of Consumer Affairs, is a good example. It has a 19-member governing board: 17 appointed by the governor, one by the speaker and one by the president pro tem of the Senate.

We also should learn from what happened to judicial discipline, when the Commission on Judicial Performance (CJP) was "reformed" by Proposition 190, designed by the legislature.

The composition of the CJP was radically altered, resulting in a political appointee-dominated commission with judges in the minority. Appointments to the CJP which were formerly made by the State Bar were shifted to the governor, and some of the appointments made by the chief justice were shifted to the legislature.

Ask any judge what he or she thinks of the new format of the CJP. The civics lesson is clear: when passage of a law requires concurrence of the legislature and the governor, we should not be surprised when regulatory systems are enacted which are controlled (i.e., patronage) by the legislature and the governor.

Third, consider the legislative process. If the plebiscite to abolish the unified bar were to pass, the ball moves from our court to the legislature's.

If lawyers defeat the plebiscite, we control our own fate. If lawyers approve the plebiscite, we hand control of our profession over to the legislature to design the replacement for the unified bar.

In fact, Sen. Quentin Kopp has announced that he has filed a spot bill in the legislature, which he will amend to abolish the bar if the plebiscite passes. So the plebiscite is the last opportunity for the legal profession to have a voice in the governance of our profession.

If you have any doubts about what a politicized bar would look like, let me offer this sobering thought.

At the Bar Leaders Conference in San Jose on March 2, there was a full debate on the plebiscite. One of the speakers on the "no" side was Assemblywoman Sheila Kuehl from Santa Monica.

She said that if you want a vision of what the bar would look like as a politicized body, you need look no further than the University of California Board of Regents. Need we say more?

During the same discussion, one of the spokespersons for the movement to abolish the unified bar was asked why more details about the plans for a replacement model weren't written into the language of the question. His response? "There is no plan."

I submit to you that as a practicing attorney, if my client were presented with a contract so vague and potentially disastrous, containing no details of consideration and specifying that my client would have no control over further negotiation of terms, I'd be guilty of malpractice for recommending he or she sign it.

That is what we are being asked to do here.

Kevin Culhane, a lawyer from Sacramento and former member of the Board of Governors, used a more graphic example to make the same point.

Culhane debated the plebiscite question with Sen. Kopp in Yolo County on March 12.

At the end of the debate, Culhane pulled out a Timex watch box and put it on the table. Then he asked all the members of the audience to take off their wristwatches and put them on the table in front of them.

Culhane then offered to swap his closed box for any wristwatch from the audience. When he was asked what was inside, he refused to tell. The audience laughed. No one accepted his offer. And that, Culhane pointed out, is exactly what the proponents of the plebiscite are trying to do to us.

I couldn't have said it better. Please join me in voting "no" on the plebiscite to abolish the unified bar.