Letters   to the    Editor

On exempting public lawyers . . .

. . . No need to pity them

In February's issue of the Bar Journal, "Public lawyers seek flexible rules," Clara Slifkin says that because full-time state and federal lawyers (of which I am one) are exempt from MCLE requirements, they "cannot" perform pro bono work.

That would be true only if those lawyers who are exempt from MCLE were also prohibited from voluntarily meeting the requirements which are mandatory for privately employed attorneys.

Obviously, no one is barring public lawyers from taking continuing education courses. The failure of some public lawyers to do so, and thereby qualify for pro bono work, is a matter of their own personal choice.

The notion that their exemption somehow forces them to boycott MCLE classes is absurd.

Craig G. Reimer
Riverside

. . . Drop the absurd rules

Ms. Slifkin may be trying to beat the proverbial "dead horse" if she believes that the MCLE rules, which exempt state and federal employees, are the reason that those lawyers cannot perform pro bono work. Years before the advent of MCLE, many government entities restricted, prohibited or discouraged pro bono activities by their employees.

Prior to becoming a government contractor and subsequently an employee, I had been active in pro bono activities. Those activities were brought to a screeching halt by rules, regulations, practices, procedures and just plain politics. In 1991, I urged the L.A. County Bar to use its clout to free government lawyers from absurd restrictions.

As I said then, it is manifestly unfair to expect the private bar to bear the entire burden of pro bono.

Betty Rome
Culver City

. . . Is there a throat surgeon in the house?

It was an embarrassment to me that prior to MCLE virtually all licensed professionals except attorneys were required to participate in continuing education. I wholeheartedly support the program. But the exemptions stick in my craw. They did back then. They do now. There is no reason in the world why a licensed active attorney who is a legislator/governor/administrative law judge/etc., does not have a problem with ethics, substance abuse, bias or substantive law. I am very upset that you are taking my dues money and fighting Judge Peterson's ruling. I take great exception that you will suspend me if I don't pay dues in protest of this. It sounds like the Keller thing all over. I would like to see my dues spent on fixing the problem by making the program constitutional.

Douglas Drake
Sacramento

. . . No labels, please

I applaud the court of appeal's ruling on MCLE. The issue is not continuing education. The issue is a professional standard for all who desire to wear the label of attorney. The bar's job is to encourage us to do more than wear a label! We are in the practice of law, not in the business of wearing labels.

Richard W.S. Pershing
Corona

. . . Just a money-maker?

State Bar General Counsel Diane Yu contends that MCLE "is an important component of the bar's public protection mission." However, the article fails to mention a single benefit that MCLE supposedly confers upon California's lawyers and the public. Most significantly, the article's only apparent justification for keeping MCLE intact is that it provides revenue for MCLE providers and advertisers. If MCLE is of any use, wouldn't one think that the State Bar could come up with a better reason than that?

James V. Weixel Jr.
Mill Valley

. . . Bar's disregard of decision is a sign of arrogance

Is the fact that the court of appeal struck down MCLE as unconstitutional not enough to convince the bar that MCLE's constitutionality is in serious doubt? It is appalling to see that the bar will not at least suspend MCLE requirements while it appeals this decision. On a broader level, is it now the official position of the bar that a court of appeal's finding of unconstitutionality deserves no deference unless and until the Supreme Court denies review or affirms? If the bar wishes to understand why it is so unpopular among it members, its arrogant disregard for the court of appeal's decision and its brazen enforcement of an unconstitutional program can provide clarification.

Andrew J. Dhuey
San Francisco

. . . No service to members

Of course the State Bar is appealing the decision striking down MCLE. When has the bar ever passed up a chance to act against the desires of its members?

The only difference is that now the bar has to openly support the continuation of MCLE. Previously, it hid behind the fact that it was imposed by the legislature and their hands were tied. "MCLE, of course, is a legislative creation," former bar president Margaret Morrow wrote to me in 1994. Bar officials never mentioned that they pushed it through the legislature and kept coming back with it until there were enough exemptions in it that those who imposed the burden on us were not inconvenienced by it themselves.

No one but the bar itself defended MCLE in court and no one but the bar is appealing the ruling striking it down. How weird that an organization that is supposed to serve us is advocating the re-imposition of a pointless burden that a court has lifted. Enough. I have previously urged that the State Bar be reorganized to have its president elected directly by its members. I repeat that call now.

Marl A. Leinwand
Agoura Hills

. . . Where is the wake-up fairy when we need her?

$900,000 over two years to one bar association lobbyist! Bar to appeal ruling which strikes down MCLE! (The most worthless program yet dreamed up by our legislators, who are exempt). Mandatory malpractice insurance! Mandatory bar association membership! But the best of all is a disbarment summary in the April issue - "In mitigation, Spaith said financial difficulties in his law office led him to misappropriate funds." Is this a typo or is this the mentality of the people reviewing disciplinary matters? I'm a little short in my account this month so I guess I'll just rob an armored car. If any of my friends read this letter, let me know if it was published. I intend to make a concerted effort never to read this publication again. Ladies and gentlemen of the bar - Wake up!

Peter E. von Elten
Auburn

. . . Let's take another vote

The State Bar is a slow or non-learner, as evidenced by the continuing arrogance it displays responding to the judgment striking down its discriminatory MCLE policy. Obviously having learned little from the effort to abolish it last year, it now wants to ram mandatory pro bono down our throats, too. Any of you legislators out there willing to introduce another bill for a referendum to abolish the State Bar? The worst that can happen to us is that the bureaucrats on Franklin Street get to collect less homage from us come dues payment time.

Robert Alan Soltis
La Jolla

. . . Lew Warden for president

As one who was admitted to practice in 1956, the best news I've read in years is that MCLE is unconstitutional! It's too bad that attorney Lew Warden of San Leandro is not the president of the State Bar. As a fellow sole practitioner, I for one would vote for him, since he understands our problems better than the present configuration of lawyers and non-lawyers. For example, the board subtracts $20 from our annual dues but adds $200-$300 per year by imposing the MCLE requirements. Big deal.

Robert L. Smith
Huntington Beach

. . . Wasting members' dues

The bar has decided to spend our dues appealing a court decision about mandatory MCLE rather than using common sense and amending the rules to make them more even-handed. It's wasteful and shameful to spend resources contributed by both lawyers and taxpayers to preserve the (dubious) privileges of a few. This action serves to further clog our court system with unnecessary litigation to the detriment and delay of those who truly need our courts to obtain justice. If the board was really interested in the public interest, it would provide an example of using the court system only when absolutely necessary. Shame on you, board of governors, for using litigation instead of looking for more appropriate ways to solve a problem.

Susan Cameron
Soquel

. . . Ditto

You tell 'em, Susan!

Janet Thompson
Soquel

. . . Cruise critics clueless

Our "Cruisin' for Credit" MCLE program has been successful among not only lawyers but also other professional groups who are equally serious. Our speakers included two former presiding judges of the Los Angeles Superior Court and one retired branch court supervising judge. All of them worked hard to present material that was interesting and informative.

The fact that the classes were taught on cruise ships did not diminish either the quality or the "seriousness" of their effort. This is the first we have heard of any criticism (April California Bar Journal) of our presentation, anonymous or otherwise.

Perhaps these anonymous critics, if they exist, should learn the facts before they make irresponsible statements, and perhaps your reporter might do the same.

Lori Keir,
Fuller & Keir Associates
Los Angeles

Conduct of leadership tarnishes profession

I was embarrassed to read the account of the bar leadership's handling of board member Pauline Weaver's proposal regarding the Bar Journal. Whatever the merits or demerits of Weaver's idea (to reduce the CBJ editorial board size), the bar leadership, particularly Tom Stolpman, must reflect on their style and conduct of leadership as contributing to improvement (or waste) in the image of lawyers. This last episode didn't reflect too well . . .

On the malpractice insurance issue, the public will most likely receive a lot more protection from ethical professionalism than from mandatory or voluntary legal malpractice insurance. Let's be honest about the purchase of this insurance. It is about defending and protecting ourselves, not the public.

Gregory F. Millikan
Pasadena

Just say no to 'mandatory'

Right on Sylvia L. Paoli! Charity is our own business. From "mandatory" pro bono (as if we did not already do enough free work) to "mandatory" malpractice insurance (as if the disclosure requirement is not enough) to "mandatory" continuing education (as if we did not already educate ourselves in our practices) to "mandatory" State Bar dues (as if our dues are not the highest in the nation), to the next meddling bar proposal.

Enough already! The State Bar is doing a great disservice to the public by each of these "mandatory" requirements purportedly designed to "protect" the public (but in reality only designed to increase the power of the State Bar). Put the sole practitioners and small firms out of business and how is the public protected?

Scott D. Myer
Los Angeles

A heavenly accolade

Re: Sylvia L. Paoli column in April issue:

Amen.

David E. Perrine
San Diego

Lobbyist bucks better spent on image campaign

State Bar President Tom Stolpman states that California lawyers volunteer at almost twice the rate of the general public. Clearly then, lawyers are already aware of the numerous opportunities to volunteer. Many lawyers already perform pro bono work and still more contribute time and money to charitable organizations. Instead of spending our increasingly hard-to-earn money on lobbyists and "investigations" into the merits of mandatory pro bono or malpractice insurance, the bar should devote some of its not insignificant resources to publicizing the good things we do for our communities. What's needed is for the public at large to be made more aware of lawyers' volunteerism. The bar should initiate a public awareness campaign in the traditional print and electronic media, informing the public of the great services performed to society by lawyers. Who knows, with such a campaign, we might even stand a chance of regaining the respect once accorded members of our profession.

Gordon P. Firemark
Beverly Hills

Protect the public by exposing the miscreants

I strongly believe that any wrongdoer to society has to face society squarely and disciplined attorneys are not exceptions. I am reminded of my 1977 experience in Saudi Arabia. As I was driving across the country, a policeman stopped our car and ordered us to go to a football field which was surrounded by spectators.

I was told that the crowd was collected to witness the hand severance of a person charged with stealing. I quietly slipped away from watching such a gruesome punishment. Even though I totally reject this type of punishment, the principle behind it is no less valid. It looks to me that the identities of disciplined attorneys are not effectively brought to the attention of the public, the real consumers of legal services.

The local newspaper where a disciplined attorney violated his expected conduct must contain the same information that the California Bar Journal (and other legal newspapers) would contain about the violators. Not giving proper publicity to the consumer is like sweeping the dust under the rug and this allows the chronic violators to prey on the uninformed public again and again.

M. Nate Viswanathan
San Gabriel

No mystery why lawyers have an image problem

Why is it that nearly every State Bar president in the near 18 years I have been a member is convinced that the bar is working to aid the image of lawyers? Not only is Tom Stolpman wrong, he, just like his predecessors, has misunderstood the difference between "doing good" and communicating that "doing good."

Stolpman's response is that "doing a good job of [assuring ethical conduct of lawyers] is the best way to increase public confidence in the profession." Merely doing a good job is not enough. Unless you tell the public you are doing a good job of it - and prove it by example - the end result will be similar to the old saw about kissing in the closet. Only you know about it.

Here is my proposed solution. First, reinstate the public affairs committee (which was disbanded about 10 years ago). Second, dust off the report "Communications 2000." Third, spend the money and hire a public relations agency to do professionally what the board and the bar president erroneously believe they can do on their own.

For their information, it just doesn't work that way. Recognize you lack certain skills - like public relations expertise - and hire one who possesses them. If you were in need of a lawyer, would you hire an accountant? So, if the bar is in need of public relations expertise, why is it being left to lawyers? And you all wonder why your image is so bad.

Stephen Glassman
Los Angeles

Errant lawyers should fall under three strikes rule

The three strikes rule for criminals might be adopted by the State Bar in dealing with repeated violators who are still kept on the active rolls, albeit, getting some suspensions, but no disbarments.

For instance, in the February issue of the California Bar Journal, one lawyer's probation was extended to 1998 when he admitted to twice having misappropriated client's funds, used his trust account to pay personal bills, bounced a check, failed to promptly perform a medical lien, perform legal services, return unearned advanced legal fees or cooperate with the bar's investigation (eight counts so far) plus a previous suspension in 1995. Will he be rehabilitated by 1998 to again practice law in California?

Another violator was involved in multiple acts of wrongdoing and failed to participate in disciplinary proceedings. For this he received two years probation, which was suspended and 60 days actual suspension. He will return.

Two letter writers in February are most critical of the State Bar's disciplinary procedures. I endorse their comments and similar letters deploring the inconsistent and lax penalties given to repeated offenders.

John A. Weyl
Lexington, Ky.

Discipline system on track

Marc Adelman's article in the March issue rightly addresses concerns that the discipline system needs improvement. Over the years, I have often marveled at the lack of force with which the State Bar disciplines attorneys. One has merely to glance at the discipline sections of legal publications to wonder how some of the attorneys who are now disbarred or suspended slipped through the cracks for so many years before the bar finally caught up with them. Given the changes to the discipline system outlined in the article, it is reassuring to know that the State Bar is responding to constructive criticism by making effective changes to the system. After all, we are one of the few professions which polices itself; if we cannot regulate and discipline ourselves then who will?

Alidad Vakili
San Diego

An unfair second blow

Mandatory malpractice insurance would be an unfair second blow to many attorneys (including me) who have retired and do not accept clients, but who keep their bar membership as "legal insurance" for their families. To hold our licenses we pay MCLE fees that cannot be deducted from a zero business income. It's said that such insurance is for the benefit and protection of clients - as has also been said of MCLE. Practicing attorneys without such insurance are already required to inform clients of that fact, which is odious to those who cannot afford it and biased in favor of well-established attorneys. I hope that some members file a legal challenge to the disclosure requirement.

Joe Marciano
San Diego

Bar needs more answers

Once we have a fair assessment of the actual scope of harm to the public, then we can make a fair assessment of whether any changes need to be made in the area of malpractice insurance coverage.

For instance, of the number of attorneys who hold a license in California and are uninsured, how many do not engage in public practice in the state? By that I mean, how many only practice out of state; how many in-state practitioners engage in government service as hearing officers, claims prosecutors or investigators for governmental bodies; how many are corporate, in-house or staff counsel and how many hold a license but do not represent anyone other than themselves in their own business interests? I submit that these people do not have use for malpractice insurance and constitute the vast majority of those without it.

What is the extent of the actual harm to the public by those who do not have malpractice coverage? On an annual basis, how many judgments for malpractice are entered where the attorney does not carry insurance? Is there some way this information could be gathered and shared with members of the State Bar before deciding on what, if anything should be done?

Douglas I. Gray
San Leandro

Scam! Sham! Shame!

Mandatory legal malpractice insurance? The only notable difference between the insurance companies of America and the drug lords of Mexico is that the insurance companies have successfully made their practices not only within the realm of positive law, but even, according to many, moral law. Is it not enough that the general public is extorted into paying automobile insurance by the threat of incarceration, forfeiture, fine, license suspension and public reproval, but that the "honorable" State Bar is going to buddy up with these legalized criminals and take away our licenses to practice this otherwise noble profession, not to mention feed our babes and selves unless we pay them their take? What a sham/scam/shame . . . I voted yes for the bar. If the State Bar joins with these monkeys, next time it will be no.

Robert Sainburg
Los Angeles

Police Chief: Don't mess with the Constitution

In reading the article "Lawsuits become integral to state's initiative process" (February), I cannot but feel there is something missing from the assumptions that all the experts indicated in the article. The state and federal courts have been ruling on many decisions that create havoc in the legal system for over 30 years.

Court decisions affected criminal behavior more than any other factor in history, increasing crime and allowing more criminals to be free to prey on people in our society. It's not the Constitution they get their inspiration from, but their own rationale as they feel what the Constitution means in the present make-up of the state or country.

The Constitution was made by people and was doing just fine until the judges became educated without common sense and ruled by their interpretations for the people's good. More and more the courts are ruling the affairs and ideas of people for the singular person in control of personal freedom than for the majority of people who grasp for it in our state and country.

George Lanterman, Retired Police Chief
Colton

No different from slavery

The proposal that we be compelled to work for free (State Bar staff exempt, of course) is an idea that really helps all practicing California lawyers. We haven't played around with slavery for awhile; perhaps it is time to give it another shot. I really appreciate your efforts to obtain legislation which requires me to pay multi-year mandatory bar dues! If $900,000 is not sufficient to accomplish this worthy task, feel free to make another secret, sweetheart deal to spend more of our mandatory dues. The goal is worth any price! I once believed the State Bar was worse than useless. Not so. The State Bar game provides entertainment, which is much needed by this would-be slave.

Donald J. Horvath
Coarsegold

Base dues on income

I agree with Kyle Hedam's letter in the February issue of the Bar Journal regarding attorney's dues. Most plaintiff/applicant attorneys are on a contingency fee. In workers' compensation the awards are so trivial that attorney fees are also a pittance. In personal injury cases if plaintiffs' attorneys win they are entitled to their fees. However, what if they lose? We all know the story on that issue. Accordingly, these same attorneys have to pay dues on not what they have earned or the hard work and effort spent on their clients' behalf, but apparently a blanket sum. I think it is unfair to the "few" competent attorneys who practice. Additionally, since most defendant attorneys are hired by mega-corporations which do not care how much they spend in legal fees, then those attorneys who have a windfall profit should be able to best afford a higher dues rate. This would maybe help the legal profession to be more honest when the tax person comes to do an audit as well.

Gary G. Tobia
Glendale

Time to take offense

I have told more than my share of attorney jokes. I regret this practice as I realize that the public and the press hold us in such low esteem.

The best people I know are lawyers. I socialize with them. I learn from them. I enjoy their company.

Notwithstanding public perception, I find lawyers to be honest, dedicated to their clients and generous to a fault. Sure, there are bad lawyers just as there are bad doctors, businessmen and politicians.

I resent the implications that we are motivated solely by self interest. How many of us studied under adverse conditions and worked long hours so that we could make a contribution? The next time a client or friend tells me a lawyer joke with the disclaimer, "no offense intended," I will tell them that I do take offense and that I am proud of my profession and my colleagues; and I ask you to do the same.

It is not OK to tolerate denigrating comments that encourage violence against us and it is time for us to take a stand.

Robert P. Des Jardins
Santa Ana

Let's respect each other

I've just perused your March issue. In it I read of a pilot project aimed at promoting civility among lawyers. I also read of proposals to force lawyers to perform free services for the public good. I noted that these things parallel, to some degree, my own local bar's efforts to get lawyers to voluntarily sign a pledge to be courteous, responsible citizens.

All of this does show that we see a need to respect and serve others. What it misses, however, is that we cannot succeed in being a collective god which legislatively imposes morality on inherently self-seeking human beings. May there soon be a pendulum swing which sees us begin to use God Himself as a reference point for judging the morality of our conduct - to the exclusion of our own self-serving, collective opinion.

Dennis Pearce Kelly
Lake San Marcos

California Bar Journal invites its readers to send letters on any topic. All letters must be signed with a daytime telephone number and complete address (only the city or town will be used in print). All letters are subject to editing, and no anonymous letters will be printed. Send letters to Editor, California Bar Journal, 555 Franklin St., San Francisco, CA 94102-4498; fax to 415/561-8247; or e-mail: calbarj@ix.netcom.com.