The question looms again:
Will Californiaís bar remain unified?

by Nancy McCarthy
Staff Writer

... CONTINUED FROM FRONTPAGE 


[Sen. Bill Lockyear]
Sen. Bill Lockyear
"I think thereís a value in having an integrated bar where all the specialty niches and different kinds of law practice have a forum to work together," said Sen. Bill Lockyer, D-Hayward. 

The powerful president pro tem also said he favors lower bar dues but does not want the barís discipline activities weakened. Lockyer said that issues cited by the governor like the barís Conference of Delegates and an expensive lobbying contract "should be secondary to the fundamental issue of professional training, qualifications and discipline." He added that political opposition to free speech should not be the basis for abolishing the bar. 

Lockyer has advised bar executives to "take inventory" and to talk to Republican legislators to help them decide what changes are necessary.

[Jim Towrey]
James Towery
A former bar president who led the 1996 fight to save the unified bar said he now believes the bar is facing the greatest crisis in its history. 

"Itís difficult to predict what the political solution to this is going to be," said James Towery of San Jose, "but given the balance of power in Sacramento, it seems inevitable that if a legislative resolution is going to be reached, including the governorís approval, the bar is going to have to make some significant compromises."

Towery added: "I shudder to think what the compromise will be."

Sen. Quentin Kopp, I-San Francisco, one of the leaders of the 1996 campaign to abolish the unified bar, said he wants the barís discipline and admissions functions transferred to the state Supreme Court.

[Sen. Quentin Kopp]
Sen. Quentin Kopp

Kopp, who authored the legislation requiring last yearís plebiscite and a state audit of the bar, said it is likely either he or Assemblyman Bill Morrow, R-Oceanside, will introduce legislation early in the next session to restructure the bar.

Although he declined to be specific about details, he believes dues can be reduced between 25 and 30 percent from the current $458 annual requirement and still fund the barís required activities.

Continuing education, if it survives a challenge in the state Supreme Court, and the client trust fund "probably" could be administered by a voluntary bar, he said.

[Chief Justice Ron George]
Chief Justice
Ron George

California Chief Justice Ron George opposes the notion of the Supreme Court assuming the barís discipline functions because it does not have the resources to do so.

But Kopp believes it is logical for the court to manage discipline and admissions. He added, "We have a government of laws, and the legislative branch of government is entitled to delegate authority to the judicial branch of government."

Towery, whose year as president in 1996 was consumed with the battle to turn back the plebiscite calling for an end to the mandatory bar, said the dues controversy poses a significant separation of powers issue.

Noting that the Supreme Court has plenary authority over the barís operations, he said the court should step in if the bar does not have the resources to perform its core functions, such as discipline and admissions, and grant the bar the ability to collect dues.

"We ought not to close down our discipline shop because we canít get a dues bill," Towery said.

Former bar governor Peter Keane, who co-chaired the anti-bar plebiscite campaign, declared the bar dead and said the only legitimate response to the governorís veto is to bifurcate the 156,000-member organization.

Admissions and discipline should be placed in an agency under the Administrative Office of the Courts, he said, and a voluntary California bar association should be created to handle everything else.

"Only a nostalgia for the past or blind intransigence on the part of the advocates of a unified bar keeps this organization propped up," Keane said. "Instead of creating some false crisis that is going to attempt to force the governor and the legislature into continuing to prop up this corpse, the board of governors should just recognize reality. There has to be a restructuring."

A bifurcated bar would result in substantial savings to attorneys and would be more effective as well, Keane said. The voluntary unit "can speak out unfettered by the legislature and the governor about issues lawyers think are important," he said.

Don Fischbach, another former bar president, said that although itís too early to speculate about bifurcation, "I have to admit the chances are much stronger than I ever believed possible before."

Added John McGuckin Jr., a former bar governor from San Francisco, "I think we need to face up to the fact that the governor and a significant number of legislators feel the bar has to shed some voluntary functions."

Peter Kaye, a Wilson appointee to the bar board who supports a unified bar but lobbied the legislature for a $25 dues reduction, said he is unsure about whether the bar will actually be forced to split in two. "I think thereís a strong sentiment for the bar to divest itself of a lot of its political activity, but whether it goes as far as bifurcation I donít know," Kaye said.

The power of lawmakers over the bar nettles its supporters, who suggest it is time to extricate the organization from legislative constraints.

Only seven of 32 mandatory bars in the United States require legislative approval of dues, and six of the seven must go to lawmakers only when an increase is sought. California alone needs legislative approval of bar dues, whether they go up or down.

"It bothers me that legislators and the governor are trying to fashion their own image of what the State Bar ought to be when it is contrary to what the lawyers voted for in the plebiscite and we do not know whether any such restructuring would meet with the approval of the Supreme Court," said Towery.

Assemblywoman Sheila Kuehl, D-Santa Monica, a longtime bar activist, said the governor should not have the power to dictate attorneysí free speech rights.

She said the constitution specifies the barís purview, the U.S. Supreme Court further interpreted that purview in the Keller v. State Bar decision, and California lawyers voted to retain the mandatory bar by a 2-1 margin.

The governor should not be able to overturn all that with his veto power, Kuehl suggested, adding, "Maybe what we really need is a total revamping of how dues are set so the Supreme Court does it and not the legislature."

[CALBAR JOURNAL]