After six months of gripes and hype, the time finally has come for lawyers to say 'yea' or 'nay' to the mandatory State Bar
by NANCY McCARTHY
Should the State Bar of California be mandatory or should it be abolished? After six months of debate, California's 120,000 active lawyers will have the opportunity to answer that question later this month when the ballots mandated by SB 60 are mailed.
"Our biggest concern is that lawyers will be apathetic," says bar President Jim Towery. "We're trying to raise their consciousness as much as possible."
The Committee to Save the Unified Bar planned a telephone and fax campaign as well as widespread publicity in local bar newsletters urging attorneys to vote no on the question posed by SB 60:
"Shall the State Bar be abolished as the agency regulating lawyers in this state on behalf of the legislature and the Supreme Court, with its regulatory function turned over to another body or bodies and some or all of its other activities handled by a voluntary association or associations?"
Proponents of bar abolition, on the other hand, were uncertain of last-minute campaign efforts. "Lawyers in California are intelligent enough to make up their minds on this by reading the ballot argument on both sides," said Peter Keane, the former Board of Governors member who spearheaded the drive to eliminate the mandatory bar. "Probably most of them have their minds made up and they don't need a glitzy, expensive campaign by either side to tell them how they feel."
The process and cost
Ballots will be mailed May 24 and must be returned by June 17. Results of the vote will be reported to the legislature by July 1.
The bar has hired Price Waterhouse LLP, at a cost of about $100,000, to handle all aspects of the vote, including printing, mailing and counting the ballots.
The ballot package will include pro and con arguments by two writers on each side, rebuttals, and an analysis prepared by the Office of the Legislative Analyst.
Although voters must sign their ballot, how they vote will be known only to Price Waterhouse.
Mandatory bar advocates have stressed several themes throughout the campaign: uncertainty about what sort of entity would replace the bar to handle such legislative requirements as discipline and admissions; loss of self-regulation of the profession, and the fact that attorneys will have to foot the bill for such regulation regardless of the plebiscite's outcome.
Opponents argue that the bar is a bloated bureaucracy which does not speak effectively for California lawyers, that dues are excessive, and that smaller agencies could handle mandated functions more efficiently and cheaply.
If the plebiscite is successful, Sen. Quentin Kopp, author of SB 60, plans to introduce legislation to start the dissolution process. However, bar officials have said they believe a constitutional amendment would be required to abolish the bar since the State Bar Act is part of the California constitution.
Whatever the outcome, the issue of required bar membership by attorneys is one that continues to dog bar associations throughout the country.
A dissident bar group in Florida has lobbied recently to shift control of the mandatory bar from the Supreme Court to the legislature. The Washington State Bar Association last year survived a plebiscite similar to California's. Wisconsin flip-flopped from mandatory to voluntary and back again.
Sometimes, it's the other way around. When a Hawaii Supreme Court justice wanted that state's voluntary bar to become mandatory, it did so in 1989.
A general unhappiness
Lindsay Thompson, a Seattle attorney who watched the Washington bar battle, said he thinks attorneys' unhappiness with unified bars simply reflects a general unhappiness among Americans with what they receive for mandatory payments, whether taxes or bar dues.
"Lawyers are no different from anybody else in that sense, so it shouldn't be surprising to see this kind of revolt turn up in professional organizations," Thompson observes.
He thinks bar associations should "just accept the fact that they can't please everybody and stop trying so hard. They should expect to have an element they can't make happy and just provide the best service they can."
In Washington, bar members were asked last year to restrict revenue derived from bar dues to "functions necessary to regulate the practice of law," including admissions, licensing, discipline, and monitoring compliance with continuing legal education and trust account regulations.
The Washington vote
By a lopsided margin, 71.3 percent voted against the change, leaving the mandatory bar intact, offering a wide range of services. Slightly more than half of Washington's 20,000 lawyers cast votes.
The issue in Washington was different from the California plebiscite because it was an effort to restrict dues to mandatory functions only. However, both associations faced similar issues. Just as in California, the Washington bar grew as a result of the explosive growth in the number of attorneys in the 1980s. It was perceived as unresponsive, elite and a bit spendthrift because it became involved in "things that many lawyers couldn't see providing individual benefit to themselves," Thompson said.
Alva Long, a colorful, dissident attorney, recognized the growing resentment and was able to turn the threads of discontent into a full-fledged battle against the state bar. Efforts by Long over the years to make changes culminated in last year's referendum.
However, his death just before the campaign began, coupled with an effective effort by the State Bar to win support, led to a resounding defeat of the measure.
Thompson does not believe the war is over, though. Because the $195 annual dues have not increased in a decade, he expects another referendum this year if an effort is made to raise fees.
The mandatory bar in Florida also faces a revolt by bar rebels who four years ago formed the Attorneys' Bar Association of Florida. Although a bill to switch regulation of the state's 52,000 members from the Supreme Court to the legislature recently died in a legislative committee, the anti-bar effort is expected to continue.
Three separate bar entities are under the control of the Florida Supreme Court: the Board of Bar Examiners, the Florida Bar Foundation, which administers the lawyer trust account program, and the state bar itself. Unlike California, the bar budget and the $190 annual fee are approved by the Supreme Court.
The dissident bar is unhappy with requirements such as continuing education and reporting how much pro bono work they perform, using bar dues to lobby, and the bar's tax-exempt status. As a result of the group's campaign, legislation was introduced this year to remove the Supreme Court's authority over admissions and discipline, placing control under the legislature.
A companion bill would have created a Board of Law Practice within the Department of Business and Professional Regulation. Had the bills gotten through the legislature, they would have required voters to change the state constitution.
Arrogance in Florida
"My reason for filing the legislation is strictly the arrogance of the judiciary and the bar," said Rep. Jerry Melvin, author of the measures. "They have the opinion that nobody at all has any power or responsibilities except the two of them."
Melvin withdrew his legislation when it became clear he didn't have the votes to get it out of committee.
Florida State Bar President John DeVault echoes California bar officials claiming that the state's discipline system does an effective job of both punishing errant attorneys and protecting the public. He also argues that the bar and the judiciary should remain independent of the legislature.
Mandated in Hawaii
In Hawaii, when a state Supreme Court justice put pressure on the voluntary state bar to become mandatory, its members did so. The court gave the unified bar some responsibility in helping it with attorney discipline, it created a judges and attorneys assistance program for professionals suffering from substance abuse and stress, and it established a client security fund.
Executive director Coralie Chun Matayoshi describes a "gentleman's agreement" concerning the discipline operation: a Supreme Court board handles discipline and the bar nominates people to serve on the board. The bar also has a say in the Supreme Court's budget and any change in professional rules must be approved by the bar. If the bar opposes a rules change, the court can only override that veto by a unanimous vote.
Matayoshi said voluntary bar members worried that becoming mandatory would force an increase in fees, and that judges, government attorneys and neighbor islands would be powerless in a mandatory bar.
A change for the better
Their worries were unfounded, she says. Local and county bars have survived and have a close working relationship with the state bar, there is greater representation of island communities on the bar board than before, and fees have remained the same ($160 for attorneys in practice more than five years).
"We have a greater say in the profession and greater responsibility in terms of discipline," says Matayoshi. "The leadership is now convinced the change was a good thing."