The board's MICRA vote was justified

by Andrew J. Guilford

A small but vocal group is now threatening to dismantle the State Bar basically because of the board of governors' vote supporting AB 250 (Kuehl), which is a very modest adjustment to the Medical Injury Compensation Reform Act (MICRA).

The assault includes a lawsuit (Morrow v. State Bar) and a legislative amendment to severely limit the bar's authority to collect dues.

These attacks are wrong. The proposed draconian limitation on dues would require yet another state audit. The mandated audit last year cost the state's lawyers $100,000 and found no irregularities.

The limitations, which would destroy the State Bar as we know it, blatantly disregard the 2-to-1 vote by lawyers supporting the current mandatory bar. The attacks also have a chilling effect on the board's debate of legitimate issues concerning the administration of justice and the bar's mission of improving the quality of legal services available to Californians.

We cannot let the board's mission be dictated by a few critics. The MICRA debate will be just the tip of the iceberg. I always have strongly supported limitations on the State Bar's purview. But I also support the bar's long history of involvement on a non-partisan basis in legislative issues, such as MICRA, which affect our judicial system.

I always have been a strong supporter of tort reform. I believe fairness and justice are improved with loser-pay rules and punitive damage limitations. But I also believe the current statutory limit under MICRA on damages for noneconomic losses must be viewed as unfair and unjust.

The $250,000 cap was established in 1975, the same year I was hired as an associate at a major law firm for $16,500 annually. Inflation has dramatically increased salaries everywhere over the last 22 years, but the $250,000 cap for victims of gross medical negligence has not changed. I personally know of injured people who, because of MICRA, have been unable to obtain counsel to pursue legitimate claims. Thus, the debate involves access to justice issues which cry out for State Bar action.

MICRA also raises important issues of fairness in that only an exclusive class of defendants enjoys its unique protection. To ignore the important issues of fairness and justice presented by MICRA would have been irresponsible and contrary to the bar's mission to serve the public interest.

Lawyers have a unique knowledge of the law and the science of jurisprudence. Indeed, many lawmakers look to the bar, its section members and its Conference of Delegates for guidance.

The bar's input into the legislative process is unique in that it is provided by an agency whose structure and legislative oversight assures a balanced public interest perspective. The board viewed its MICRA vote as a modest step to restore balance in certain egregious cases rather than a statement endorsing the repeal of MICRA.

In Keller v. State Bar, the Supreme Court did not prohibit the bar from engaging in lobbying and expressly acknowledged that it "performs important and valuable services for the state." We must continue this mission of service. I hope those attacking the bar might instead work with us to improve our justice system. This might result in loser-pay rules, punitive damage limitations, and yes, even modest adjustments to MICRA.

Defense attorney Andrew J. Guilford of Newport Beach is a first-year member of the bar board.