to the

Mandatory malpractice insurance . . .

. . . for other professions

The April issue inspires two comments. First: The elected officials of the State Bar are those whom the membership voted into office. Don't complain, you are getting exactly what you voted for. May that thought remain with you in the next election.

Second: Why shouldn't mandatory malpractice insurance be made applicable to everyone who deals with the public: mechanics, repairmen, tax preparers, computer software salesmen and providers, MCLE providers, farmers, retail merchants and any person providing any sort of services and goods to the public?

Singling out one profession for mandatory malpractice insurance obviously violates the equal protection rights of members of the bar to the same extent as the MCLE program.

Allan W. Wallace

. . . spurs opportunists

There are contingent fee sharks out there who selectively bring malpractice actions on the flimsiest pretext only against insured lawyers for the purpose of skimming the insurance money. They specialize in filing a malpractice action to negotiate a settlement with the insurance company and get out with their 35 percent of the recovery.

Unfortunately, the insurance companies encourage this conduct by preferring to settle a case rather than pay for a determined defense. These opportunists quickly remove themselves from the case if the defendant refuses to approve a settlement but instead insists on a vigorous defense against the (usually) meritless claim of the client.

Henry M. Bissell
Los Angeles

. . . needs statistical basis

It appears to me that the issue as to what percentage of malpractice claims have merit and what percentage of claims do not has not been adequately addressed by the State Bar. Although I have not yet been the target of a malpractice suit myself, I have known of at least 20 malpractice claims against my peers who practice family law.

Of the 20 claims, only one had any merit as to liability. In fact, the definition of malpractice in family law is simply an unhappy client. It also appears that the physicians in this state were able to marshal a great deal of publicity on their behalf regarding frivolous malpractice claims; I simply wonder out loud why the State Bar is unable to do the same for its own members.

In sum, any re-examination of malpractice insurance should also provide some form of statistical analysis as to those claims that have merit and those that do not.

David R. Baker

Don't appeal -- apologize

Looks to me like the irresponsible state legislators and their lackeys on the board of governors have subjected the people to gigantic liability for damages resulting from their intentional fraud in imposing unjust, discriminatory and irrational requirements for the practice of law.

Instead of appealing the MCLE de-cision, why isn't the board apologizing?

Looks to me like they have deprived a lot of citizens of property under color of state law. We're getting close to payback time. I hope those stupid, arrogant, overweight legislators and their leisure-loving appointees get a taste of their own medicine.

Michael J. O'Hearn

A flock of sheep?

It stands to little credit to the bar to appeal an obviously unconstitutional MCLE. The bar expends even more time, effort and money trying to justify its untenable position. That effort should be directed toward an MCLE proposal that meets the valid constitutional objections of the court.

I was further distressed when it was pointed out in a recent Bar Journal article that the MCLE program could have significant economic implications to providers -- including the Bar Journal. I wasn't aware that the purpose of the MCLE program was to support providers.

Hurray for Mr. Warden and the court system and "Baa" to the rest of us sheep.

Ed V. Grundstrom

MCLE bears no relationship to proficiency of practice

Edward Kallgren's article in the May issue (In defense of MCLE) is most notable for its sophistry. The transparent problem is that MCLE, as currently constructed, provides no reasonable assurance that the education received under the MCLE program bears any relationship to the current proficiency of lawyers.

The unfortunate truth is that most attorneys do not need the motley collection of courses offered, and if they are diligent about maintaining professional competence, do so in many ways that do not require formal courses.

Mr. Kallgren is, of course, aware that there are insubstantial and frivolous courses offered, and that one can score zero on all tests taken, and pay no attention at all in classes, and still be deemed to have completed MCLE effectively. So what is it really that the MCLE program accomplishes? Nothing, for either the professional practitioners or the ones who are not so professional, albeit for different reasons.

If the bar were truly interested in providing greater competence, it would require attorneys to identify their intended practice areas and require specific education related to those areas.

Education without measurement of results is likely to prove rather use-less at best, and damaging at worst.

Larry Israel

No evidence of benefits

Ed Kallgren has no legitimate basis for his assertion in the May issue of the Bar Journal that "most lawyers understand that MCLE is worthwhile." The closest thing to a poll on MCLE that I am aware of, admittedly not very scientific, was a 1993 fax poll by California Lawyer in which 79 percent of the respondents indicated that they were opposed to the MCLE program.

Now, I concede that I do not travel in Mr. Kallgren's rarified corporate law firm circles, but the vast majority of attorneys that I know -- mostly sole practitioners who unlike Mr. Kallgren must pay for MCLE courses out of their own pockets -- feel that the MCLE mandate is a waste of time and money.

Both the court of appeal in the Warden case and the California Supreme Court in People v. Ngo (1996) 14 Cal.4th 30, noted that at the time of initiating the MCLE program, the State Bar acknowledged to the legislature "the lack of any statistical evidence clearly demonstrating a direct, positive correlation between MCLE and attorney competence."

The lack of any evidence that the MCLE program provides any substantial benefit to the legal profession or the public is the dirty little secret behind the State Bar's MCLE program. California legislators were well aware of this and that is why they chose to exempt those practicing attorneys whom the legislators deemed to be important: themselves, their staffs and any attorney employed by the state government.

Richard L. Rubin

All about money

There is no mystery what MCLE is about. It is about money. A lot of people are making an awful lot of money from MCLE and they stand to lose money if it ends.

MCLE has nothing to do with competence. One-third of it is politically correct fluff, and none of it is dependent upon whether the attorney subjected to it actually absorbs the material. All that is required is that we pay our money to someone.

The reason there isn't a great outcry from a majority of the bar is the same reason that lawyers haven't voted against the mandatory bar -- a very large segment of the bar is not personally affected. Attorneys in medium and large firms and all attorneys in public practice have their dues and their MCLE fees paid by someone else: either their law firm or, in far too many cases, the taxpayers.

The load falls heaviest on sole practitioners and those in small firms. The same people who are being continually exhorted to spend more time in "pro bono" work (and who, for practical purposes, are the ones who do most of it).

The view of the State Bar, from the trenches of small town practice, is that it is a company union which represents special interests against its members. The best we can do is pay our dues and keep our heads down -- but we don't have to pretend to enjoy it.

Douglas Buchanan

Bar is no friend of sole practitioners

Prior to my legal career, I maintained a real estate broker's license and was required to take continuing education courses. You did not hear many real estate persons complaining for two reasons: the cost was reasonable and the information was informative and entertaining.

The cost of the average CLE course is expensive and the quality of teaching is below average. It is no wonder certain elements of the legal profession exempted themselves from the MCLE requirements. The requirement to take bias and substance abuse courses can only be pablum for the politically correct among us.

For the bar to consider mandating pro bono work would be an outright insult to the sole practitioner. Besides the outright pro bono work I perform, much of my fee work, after all is said and done, is pro bono.

On the subject of mandatory malpractice insurance: the cost can be prohibitive to some attorneys and it will raise costs to clients. It will create more work for attorneys who practice in the area of malpractice (the deep pocket theory) and create a bonanza to the insurance industry.

I pay my mandatory dues and believe the bar has absolutely no interest in making the practice of law easier or enjoyable for the sole practitioner.

Reginald Bedell
San Francisco

MCLE is a sham

Speaking as a former local bar president, I strongly believe lawyers have an obligation to educate themselves. Equally strongly, however, I believe that the current program of forcing lawyers to pursue continuing education is a sham.

MCLE has not caused, and will not cause, any substantial improvement in the educational accomplishments of members of the bar. Responsible members take the time to educate themselves on a continuing basis, and would do so in the absence of MCLE.

Irresponsible members who wouldn't continue their education without being forced to do so are generally inattentive and often satisfy the requirements in "cram" courses, spending time on their office work while their body is present at the seminar. Since there is no testing and the credits are obtained simply by being physically present for half of the requirement and listening to audio or video tapes for the other half, the program is a joke among lawyers.

The only certain result is that lawyers are forced to pay for educational programs that many don't need and to which many don't pay attention.

John Marshall Collins
San Jose

Too much money, time

Nancy McCarthy's article (April issue) stands out as one of the best, if not the best, reason for not appealing the well-intentioned and logical decision of the appellate court which struck down the MCLE program. "Significant implications," i.e., advantage to providers (including the State Bar) is not a valid reason to continue a wasteful program costing attorneys too much money and time for negligible benefit.

Yes, attorneys should, and the majority do, keep up with changes in the law. Forcing attorneys to waste hard-earned money and valuable time on programs not relevant to their practice, especially substance abuse, bias and more than eight hours of ethics and law practice management over and over and over.

Nowhere in the article is a mention of protecting the public. I thought that was the justification of the program. Obviously, I was wrong.

Marilyn V. Freytag

The writer should reread the article more carefully.

Those crazy Yanks

As I sit across the pond in London and read the last couple months of the California Bar Journal, I can't help thinking perhaps the jokes and criticisms of California lawyers are true. It seems as if my colleagues in California have somehow gone a bit nutty or at least the people who run our State Bar have.

There has been much outcry from many members of our bar regarding the payment of lobbying fees, proposed additional mandatory requirements and now the appeal of the MCLE decision.

It seems to me that in every other democratic organization, when a significant number of the members complain about the competency of those governing, a confidence vote is held.

Is there not such a procedure in our own organization? These issues have significant effect on the members. Therefore, I fail to see how a few bureaucrats should be making the final decisions without assessing the opinions of its members.

The State Bar should be held to a no confidence vote and if so found, a whole new board should be appointed (if this is procedurally possible).

At a minimum, the board should be sending questionnaires or voting ballots to its members to assess their opinions and then act according to the members' wishes.

Margaret Tritch

Court's Prop. 209 opinion degrading to women

If enforced, Proposition 209 would eliminate all affirmative action programs in public hiring, contracting and education. Judge O'Scannlain's opinion vacating the district court's preliminary injunction completely ignores the fact that women currently face discrimination on a daily basis, including discrimination in pay and promotions.

The Ninth Circuit opinion assumes that women and minorities have achieved equality with men in all respects and that they are operating on a level playing field. If this were the case, there would be no affirmative action programs, even with without Proposition 209, since any such programs would be unconstitutional by giving preferences to one group over another.

Not only does the court's opinion ignore the present discrimination faced by women, but it implies that women and minorities, collectively comprising the majority of voters in this state, voted to, in essence, disenfranchise themselves. The court then concluded it should not intervene if people are ignorant enough to vote against their own interest.

This position by the court is degrading to women. It also ignores the traditional role of the court in intervening to prevent discrimination even when the majority of the voters vote to allow discrimination.

Tina L. Rasnow
California Women Lawyers, Sacramento

Attorneys need to lighten up

Not just one or two, but a full four attorneys took umbrage in your last issue's letters to the editor page to the comment by John Davies, judicial appointments secretary to Gov. Wilson, that, "You have to keep in mind it isn't easy to find qualified Democrats." For those of us who haven't gotten the point, the remark was, of course, a joke.

Now, who feels silly? To each of the attorney letter writers, pay heed that a juris doctorate isn't a license to be humorless. Revel in the occasional humor of a governmental official. It's all too rare to go unappreciated.

Eric M. George

Mandatory is becoming our middle name

What would a reasonable person think of a group of people who were so inhumane, incompetent and insolvent that each and every one of them (except the politically connected) needed to be subject to mandatory pro bono, mandatory continuing education and mandatory malpractice insurance in order to function in a professional manner? What opinion does the State Bar have of the membership to push for these measures?

Nancy K. York

Beware of dinosaurs

On the opinion pages of the March issue, Richard J. Chrystie proposes that we "eliminate jury trials for misdemeanor cases" and refers to them as being "a relatively minor offense." I urge him to ascend from the La Brea tar pits and take a look around.

Is a year in jail -- the maximum for many misdemeanors -- minor? Six months (even subtracting good time) is not "minor" to most people, the U.S. Supreme Court notwithstanding. More importantly, it is not the sentence which is of primary concern in many misdemeanor cases but rather the effect that acquiring a "record" has on the defendant.

Ever know someone trying to get a decent job with a grand theft misdemeanor on his record? Even a petty theft is considered a crime involving moral turpitude. Obtaining a dismissal under §§1203.4/1203.45 PC doesn't erase the conviction from a person's record. Furthermore, criminal court trials would be a joke. Very few judges will risk incurring the wrath of the district attorney and the local police by finding against them.

I know. I have practiced in juvenile court where there is no right to a jury trial. My suggestions: (1) If the case is minor, don't file it, and/or (2) Make every misdemeanor chargeable as an infraction but preserve the right to a jury trial if it is charged as a misdemeanor.

James P. Sullivan Jr.
San Mateo

Goal of justice lost in unanimous jury debate

Richard Chrystie naively attributes the "need" for less than unanimous verdicts to instances in which "one or two jurors were completely off track, irrational or caught up in some irrelevant issue." In a society where the vast majority of people routinely accept the testimony of law enforcement without question, perhaps a better explanation for hung juries is that few people are conscientious enough make prosecutors meet the burden of their proof.

I can just imagine the complaints if we were to accept convictions on a 9-3 vote and a jury hung for conviction at 8-4; "Well," our assistant district attorney would say, "those four people were irrational. Completely off track! We should be able to get a conviction on a 7-5 vote."

Perhaps Mr. Chrystie would prefer it if convictions were based solely on the prosecutor's decision to charge. That would really be efficient. Our goal should be justice, not maximizing the number of convictions.

David Hirsch

Unanimous juries ensure thorough decisions

I was quite disturbed to read Richard Chrystie's "Booting unanimity off the jury." Unlike the rest of society where the "majority rules," in a jury room every person's opinion and viewpoint has equal value.

I recently had a hung jury in a DUI case. The entire process of 14 hours of deliberation -- trying to convince one recalcitrant juror -- forced each juror to fully analyze and explain the rationale for their decision. That sort of thorough evaluation of the evidence and conclusions to be drawn from it would never happen in a non-unanimous setting.

Even though I learned that the jury was split 5-1 in my favor, I still firmly believe that requiring a unanimous verdict is the proper approach. Jury reform can certainly be had in a number of other ways than dispensing with the unanimous verdict requirement.

Melody A. Kramer
Lincoln, Neb.

Tarring and feathering should not be taken lightly

Is anyone surprised that it is a district attorney who suggests that we abolish jury trials in misdemeanors and rid ourselves of unanimity in felony trials? Would this ill-advised suggestion benefit anyone except the people who want more convictions faster?

The district attorney mentions nothing about the rights of the defendant, who may have to serve time in jail if convicted. More and more of our society seems to be retreating from the centuries-old wisdom that a criminal conviction carries such extreme penalties that we must be especially careful of who we tar and feather.

In our rush for law and order -- whipped by a distorted barrage of weird stories about criminals who "got off" on a technicality -- we seem to forget that 95 percent of the criminal trials in this state end as convictions. I propose that the remaining 5 percent actually may not be guilty. I think those people are worth the time and effort -- and "expense" -- of making district attorneys prove their case to the uninitiated.

Mark C. Bruce, Deputy Public Defender
Orange County

Here we go again

It is always interesting to read how, as the pendulum swings in favor of prosecution, they can always find further ways to get rid of the Bill of Rights. Richard Chrystie's suggestion for non-unanimous jury verdicts stems from heady victories of Propositions 8 and 115, and the three strikes initiative.

It's interesting that his suggestion of 10-2 verdicts for felony trials comes shortly on the heels of the district attorneys' strong insistence to be allowed to voir dire juries. He says it will "speed up jury selection" -- just how? He's so worried about short resources and the need for efficient criminal justice.

If he really was so interested, he would urge that we avoid death penalty cases which cost us six times more than a simple capital case where his office seeks life without any parole. His bias is clearly showing.

Joe Ingber
Los Angeles

Simplistic platitudes just won't die

Having researched the history of the jury unanimity debate in California law school last year, it is somewhat embarrassing to find our public officials and experienced legal advocates dishing out the same simplistic platitudes over and over again, regardless of what side they are on.

The national average of hung juries, which overwhelmingly requires unanimity of decision in felony trials, is only five percent. The more intelligent proposal for Richard Chrystie would not have been to abandon "continued obeisance to the mythology of the unanimous verdict," but to rather examine why California jurors in particular feel a stronger compulsion to hold out for a minority position.

Chrystie should have pointed out that the more important down side of unanimity is that jurors may feel so pressured to reach a verdict that they surrender their convictions to follow the majority. On the other hand, jury research shows a clear and strong tendency among jurors under a non-unanimity requirement to quickly obtain the necessary majority and disregard minority opinions, just so that they can pack up and go home.

That is the greatest danger and most persuasive reason to keep the unanimity requirement -- we must not lose the thoroughness of debate which unanimity helps to ensure.

J.A. Brobst
Djursholm, Sweden

Pro bono work is best way to promote lawyer image

Four letters regarding pro bono service in the March issue of the Bar Journal are the epitome of ignorance and selfishness. The lawyers who voice objection to the pro bono trend willingly play golf with clients, take clients to lunch or to sporting events and even pay expenses to advertise. None of these practices brings to the profession the esteem generated by pro bono services. I predict that mandatory pro bono by lawyers in active practices will be a nationwide requirement by the year 2000 or shortly thereafter.

Rufus W. Johnson
Mason, Texas

Letters to the Editor

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