The plebiscite: Why should I care?

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: Why should I be concerned about the outcome of the SB 60 plebiscite? I am in private practice and the State Bar has no visible impact on me. I have no involvement with the discipline system; I don't participate in State Bar volunteer work; all I do is send my dues to the bar every year. I don't see that the outcome of the plebiscite will affect me much, however it turns out.

TOWERY: This is a question I hear frequently as I have had the opportunity to speak to lawyers across the state over the last several months.

Many lawyers seem skeptical that the plebiscite will affect them personally in any significant way.

I believe the potential impact of the plebiscite on all California lawyers is profound. What is at stake in this plebiscite is nothing less than the independence and self-regulation of our profession, as an arm of the Supreme Court under the judicial branch of our government.

We are the only profession in California to enjoy that independence. Every other profession is controlled by a politically appointed board under the executive branch of the state government.

The legal profession has enjoyed this independence since 1927, when our bar became unified or mandatory with the passage of the State Bar Act.

Taking independence for granted

I fear that we California lawyers have come to take that independence for granted, just as many Americans take our civil liberties for granted. We do not really appreciate what that independence means as a practical matter, to the point where we risk losing it.

These are abstractions; let us try to reduce it to concrete examples. Let us consider ethical rules governing our profession. Under the unified bar, we lawyers propose in the first instance the rules under which we practice, subject to approval by the Supreme Court.

If the unified bar were abolished, we would be at greater risk for operating under ethical rules adopted by the legislature or by whatever politically appointed board were created to replace the unified bar.

To give you a glimpse of what those rules might look like, in recent years the State Bar has successfully resisted legislative proposals for recertification by lawyers, random audits of lawyers' bank accounts and expanded roles for unsupervised paralegals.

Is that the type of ethical environment in which any California lawyer wants to practice?

Some might argue that those risks are overstated, because the Supreme Court will continue to have the final say. I hope that is true, but I have doubts.

A curious omission

There is a curious and troubling omission in the question the proponents of the plebiscite have put into SB 60. The question asks whether the unified bar should be abolished and its "regulatory functions transferred to another agency."

The statutory question is silent as to whether the new agency is in the judicial or executive branch and whether the Supreme Court would retain ultimate control. And if the lawyers vote to abolish the unified bar, it will be the legislature in the first instance that will design the replacement for the bar.

Another concrete example of how the plebiscite affects every California lawyer is the question of what we pay in bar dues. Under our current system, our dues are substantial, but they have remained flat since 1991 and will actually have a modest reduction in 1997.

We have achieved this track record because of economies imposed by the governing board of the unified bar, two-thirds of which is elected by lawyers of the state.

If the unified bar is abolished and replaced by some governmental bureaucracy (whether in the judicial or executive branch), why should we believe that a new agency - with no lawyer control - would be similarly motivated to keep our dues as low as possible?

No dues reduction

The proponents argue that dues will go down if the unified bar is abolished, simply because of the elimination of the non-mandatory functions the bar now performs.

The facts cast substantial doubt on this. Of our present dues, more than 70 percent is dedicated to lawyer discipline, which we lawyers will continue to pay for whether the unified bar remains or is abolished.

Another 10-15 percent of our dues support other mandated functions, which we will continue to pay for, even if the unified bar is abolished.

Examples of these other mandated functions include the Judicial Nominees Evaluation Committee, the IOLTA program and the Legal Services Trust Fund Commission, MCLE certification and the mandatory fee arbitration program. So the savings from abolishing the unified bar are largely mythical.

Let us consider a final example of how abolishing the unified bar would affect all lawyers in the state. By doing so, we would lose valuable programs which benefit California lawyers (the Ethics Hotline, the Other Bar, the Law Office Management Assistance program, to cite a few examples).

We also would lose what is currently a vehicle for countless thousands of hours of volunteer time which California lawyers now devote to improving our profession through the unified bar. For example, some 55,000 lawyers belong to our 17 sections and hundreds more participate through our standing committees. It is highly debatable whether any of these would survive abolition of the unified bar.

It's your future

Thus, the plebiscite does have a direct bearing on every California lawyer.

I strongly hope that each of you will follow the plebiscite debate closely and vote when the ballots come out in May. The plebiscite is an attack on the State Bar of California. The State Bar is far more than a group of bar employees in San Francisco and Los Angeles. The State Bar is the vehicle through which we California lawyers - all of us - control and regulate our profession. That is the essential reason why we need to emphatically reject the move to surrender control of our profession.

Please join me in voting "no" on the SB 60 plebiscite to abolish the unified bar.