Is the State Bar's new contract with its lobbyist a good deal?
by Thomas G. Stolpman
by Peter F. Kaye
Despite recent criticism of its decision, the Board of Governors' restructuring of the State Bar's Sacramento operations and outsourcing the position of its chief legislative lobbyist makes sense for the bar and the profession. The contract with Mel Assagai ensures that the bar will continue to have the best legislative advocacy and advice at a price which saves members $158,000 over the two-year legislative session.
No one disputes that Mr. Assagai, as one of the finest and most qualified lobbyists on the Sacramento scene, should receive an adequate fee for his services. However, some critics charge that the $450,000 annual contract is out of line, that the bar should have gone to a competitive bid process.
This criticism ignores the fact that lobbyists, like most lawyers, are not selected on the basis of the lowest bid; clients have too much to lose by simply hunting down a bargain-basement price. Instead, such advocates are chosen for their unique skills and specialized knowledge.
Mel Assagai and his firm, The Advocacy Group, was the logical choice. As the former senior executive for governmental affairs, Mr. Assagai has a superior knowledge of the organization and a proven ability to translate to legislators what the bar does and why. Retaining Mr. Assagai ensures the full and uninterrupted representation of the bar's existing programs and activities.
For someone new to get up to speed on the wide-ranging activities and constituencies of the bar's work would require years -- time which California's attorneys cannot afford to lose. To best advocate for the profession and to defend against attacks on our profession, we need a proven lobbyist who already knows the territory. Mr. Assagai fits the bill.
By entering into the contract with Mr. Assagai, the bar is also able to downsize staff and office space as well as eliminate two lobbying consultants who were paid by the bar. Mr. Assagai, under the agreement, must provide the same level of service at his own expense.
The fee under which Mr. Assagai and his firm will be performing is all-inclusive. Day-to-day responsibilities fall into two areas.
The first category involves advancing the Board of Governors' legislative program, which includes the fee bill, discipline-related proposals and other bills affecting the structure of the bar and its entities and statutory mandates.
Secondly, but equally important, our chief lobbyist acts as the bar's eyes and ears in Sacramento. This role requires a keen sensitivity to political developments, to brewing undercurrents, and to proposals which could have a negative impact on lawyers, the profession or even our entire system of justice.
Why is this Sacramento presence so crucial?
First of all, the bar is dependent upon funding authorization from the legislature for its very survival. Unlike voluntary trade associations and private corporations, most of the funding for California's 70-year-old unified bar would be cut off without this authorization to collect annual membership fees.
Recent critics of the contract insist on painting the picture of a deal unfairly struck behind closed doors. Not only are such detractors overlooking the clear benefits of the agreement, they also are ignoring the law regarding personnel matters.
Business & Professions Code §6026 requires such matters to be discussed in executive session -- which is precisely how we handled this contract.
Critics also point to an incentive agreement to encourage the enactment of a multi-year fee authorization. It was a mistake and has been deleted under a severance clause.
Our recent agreement with Mr. Assagai is simply an outgrowth of last year's push to find ways of reducing the operating costs of the bar's governmental affairs office. The bar was responding to one of the strongest messages delivered by its members in last year's plebiscite: streamline, pare down the bar's operations and cut costs.
The recent overall restructuring of our Sacramento operation amounts to nothing short of a good business decision; we save money and we get an experienced professional whose eyes and ears are always focused on the best interests of the lawyers of the state.
Thomas G. Stolpman: A partner in the Long Beach firm of Stolpman, Krissman, Elber, Mandel & Katzman, Thomas G. Stolpman currently serves as president of the State Bar. He was elected to the Board of Governors in 1993 and to his one-year term as president last summer.
Sometimes I wonder if the State Bar is too important an organization to be left in the hands of lawyers. Take the controversial contract which the bar signed with its principal representative in Sacramento -- lobbygate as one observer called it.
It was conceived in darkness, nurtured in secret, authorized behind closed doors and executed without discussion or disclosure. All done by lawyers. Perfectly legal. And absolutely disastrous.
The contract was negotiated with lobbyist Mel Assagai and his attorney by bar President Tom Stolpman, executive director Herb Rosenthal, general counsel Diane Yu and board member Joseph Bell.
It was presented to the Board of Governors as a fait accompli. A done deal. A perfect product of the lawyers' art to be accepted without a vote. And it was.
It was until five non-lawyer members of the board decided it should not molder in some dark corner. The contract to privatize the bar's lobbying, and how it was achieved, raised basic issues involving budget, organization and the way the bar conducts its business. Specifically, they questioned the concept of a multi-year dues bill. Over the objections of Stolpman, the five managed to discuss some of these issues openly at the board's January meeting in Los Angeles.
The mini-revolt was duly and accurately reported in the legal press. A subsequent story pointed out that one key provision of the contract -- a $75,000 bonus to Assagai for securing a multi-year dues bill -- was illegal. It also indicated that Assagai's $450,000 yearly fee may be excessive.
Stung by the story and a firestorm of criticism from legislators and bar members, defenders of the contract reacted.
The multi-year provision was excised from the contract. Stolpman sent out a letter to 1,200 bar leaders saying, "I believe the agreement makes ultimate good sense for the bar and its members."
Parroting the Stolpman line almost word for word, the bar's senior executive team distributed its own memo to all employees. Not surprisingly, their conclusion was "the State Bar's contract with Mel remains a very good one for the State Bar."
But behind the customary closed doors, a far different scenario was unfolding. Slowly but inexorably, lawyer members of the board began to defect.
Their discontent bubbled over at an unpublicized secret meeting of the board's legal committee called by its chairman, Ray Marshall. Nineteen of the board's 23 members were on the conference call and many expressed their concerns:
Is the board getting its money's worth?
Was the contract a sweetheart deal?
Who is going to be working in the new office and what is its responsibility?
What are the effects on the bar's budget? Its organization?
The actual discussion within the meeting and any decisions are secret -- governed by the arcane laws with which attorneys cover their actions.
And that's the whole point.
So concerned are the attorneys who govern the State Bar with legal niceties -- so afraid are they of being sued -- that they miss the bigger picture.
Just because a contract is legal doesn't make it right. Just because a president says a contract is good doesn't make it so. Just because lawyers like secrecy doesn't make it desirable.
What's at stake here is trust. And candor. Between the leadership of the State Bar and its dues-paying members. Between those who asked for a vote of confidence and those who gave it in the plebiscite last year.
It shouldn't be up to the public members to see that the bar's business is conducted openly and competently.
Peter F. Kaye: A vice president of the State Bar, Peter F. Kaye is editorial director of KNSD-TV in San Diego and former associate editor of the San Diego Union-Tribune. He was appointed to the bar's Board of Governors in 1991, and reappointed in 1994, by Gov. Pete Wilson.