|Thomas G. Stolpman|
Even before the plebiscite campaign in 1996, the bar made a commitment to become more responsive to our members and to the public. At the beginning of the 1995-96 year, incoming President Jim Towery announced a commitment to implement a $20 dues reduction for calendar 1997.
This was the first dues reduction in bar history. We did this even though dues had been held steady since 1991. In August, Sen. John Burton introduced amendments to SB1145, the State Bar dues bill, which will result in a further $10 reduction in dues for the upcoming two years. This was achieved through the efforts of our staff in maximizing the sales price of our existing headquarters.
Some critics lambasted the bar when we purchased a new headquarters in San Francisco, consolidating three separate Bay Area facilities into one building. History has proven that bar leadership made an extremely wise investment, taking advantage of a rising real estate market. The new Howard Street property has appreciated in price, while the sale of our Franklin Street headquarters will result in a gain of $2 million more than we had budgeted at the time of the transaction. That $2 million will be rebated to active members of the bar on their dues statements for 1997 and 1998.
In October, the board unanimously adopted my proposal to streamline the organization of the board by eliminating and consolidating committees and task forces. This allowed the board to focus on the key issues facing the bar. We also reorganized the meeting schedule so that committees would meet consecutively, giving board members and the public the opportunity to attend all of the meetings. While the reorganization has resulted in some criticism, the effect has been to make the board more efficient in getting its business done. We also have provided other leadership opportunities for experienced board members, reflecting my view that leadership depends not on titles, but on getting things done. Hopefully, future boards and presidents will focus on identifying key issues and developing policies and goals, allowing our staff to generate the programs to implement them.
Traditionally, the board has set up various task forces consisting of board members who tackle the issues of concern to that year's president. This often results in changes of direction from year to year as new presidents come and go. In a fundamental change of structure, we assigned various board members to "leadership assignments" this year, focusing on key issues facing the bar as an institution and the profession as a whole. These leadership assignments explored such issues as: professionalism, civility and ethics; unemployed, underemployed and burned out lawyers; minimum continuing legal education; and mandatory malpractice insurance.
The decline of professionalism and civility, along with the development of a view that ethical conduct consists of compliance with rules, represents a key challenge for the legal profession. This year we encouraged the Santa Clara County Bar Association to set up a pilot program to deal with attorneys whose conduct is inconsistent with standards of professionalism and civility. We also helped conduct a conference on professionalism in conjunction with the ABA Annual Meeting in San Francisco. After opening remarks by Chief Justice Ronald George, leaders from the judiciary, the bar and academia from throughout the country began discussion which hopefully will spread and provide the foundation needed to improve professionalism and civility among lawyers.
The flexibility of the leadership assignment process was demonstrated when the board was confronted with whether or not to adopt a futures commission recommendation to mandate legal malpractice insurance for all California lawyers. The board had not examined this issue since 1986. Two board members developed the framework for a presentation to the board so that an intelligent debate could be undertaken. After the debate, the board acknowledged that the complexities of the actuarial market prohibit any meaningful attempt to implement mandatory malpractice insurance.
Other board members were assigned to work with the State Bar Court, given the fact that a new presiding judge and several new judges had been appointed by the Supreme Court. A smooth transition was accomplished, and the court is moving forward. With the bar's budget passing the $100 million mark in 1996, board members felt increasing frustration with being presented such a huge budget without any real understanding of how and why it looked the way it did. The board revised the process, allowing more input into the budget planning undertaken by the executive director and senior executives. This year, a significant amount of board time also was spent attempting to define the structure of the bar and the relationship of the board to the president and executive director. The result is a board blueprint which will provide a framework for future boards.
This year, the State Bar stepped up its outreach to attorneys, judges and the public on the critical issues of attorney professionalism, civility and ethics -- and the bar's role in policing conduct in these areas. A special report to the bar's Board of Governors underscored that the bar's discipline system cannot -- and should not -- crack down on every breach of civility or professionalism; individual lawyers, local bar associations and judges all play important roles in seeking and maintaining high ethical and professional standards for California attorneys.
Recently, letters were sent out to all California judges, including federal judges, reminding them of their statutory reporting requirements and touching on the issue of attorney conduct in the courtroom. The bar's Office of Chief Trial Counsel took the message a step further by making follow-up presentations to judges' groups across the state.
On another front, the State Bar and the Santa Clara County Bar Association jointly set up a community-based pilot project to handle complaints of attorney incivility and unprofessional behavior in that county. State Bar prosecutors will forward to the local program any case that raises concern about an attorney's conduct but does not rise to the level of a disciplinable offense. The complaint is reviewed and, if appropriate, the accused lawyer receives peer counseling from another local attorney. The program -- initiated by State Bar board member Ann Ravel -- also seeks to involve local judges in the process.
Each year, the bar responds to 140,000 calls to its consumer hotline and looks into some 15,000 allegations of attorney misconduct. This year, the State Bar's discipline system also completed an extensive investigation into more than 300 complaints involving the O.J. Simpson criminal trial and the attorneys on both sides of the case. While most complaints went beyond the bar's jurisdiction or did not involve clear-cut rule violations, two attorneys were sanctioned for misconduct and another received a letter flagging problems in his practice.
The State Bar, in cooperation with the state Attorney General, also succeeded this year in halting a multi-million-dollar "trust mill" accused of using unfair business practices and the unauthorized practice of law to peddle living trusts and annuities to thousands of senior citizens. In settling a lawsuit jointly filed by the Attorney General and the bar, the Orange County-based Alliance for Mature Americans (AMA) agreed to stop selling estate planning services and living trusts, and to pay $1 million in restitution and $100,000 in civil penalties.
The AMA suit was just one example of a recent State Bar plan at work. The State Bar has broadened its push to curb the unauthorized practice of law (UPL) in California. While acknowledging independent lawyer-supervised paralegals or producers of self-help materials, the plan of action includes pursuing litigation when UPL poses a serious threat to consumers; actively participating in shaping UPL-related legislation; and working with interested parties to develop a collective strategy.
Regulating California's 155,000-member-strong legal profession also entails drafting and revising rules to meet changing needs. Highlights include:
Still in the works are proposals to purge closed complaint files after a specified time period, update the discipline cost-assessment formula to reflect current expenses, and expand the scope of costs which can be recovered from disciplined attorneys.
Admissions & professional competence
A set of revised rules for admission to practice law in California went into effect this year. Among the key revisions is a rule implementing recent legislation modifying the requirement for law students who must take the First-Year Law Students' Examination. Such students now have three chances (three consecutive administrations) to pass the examination without losing credit for ongoing law study. Another revised rule prohibits currently disbarred or suspended out-of-state attorneys from filing moral-character applications with the State Bar. (As a consequence, they cannot fulfill the admission requirements for practicing law in California.) However, the new rules permit out-of-state attorneys who have been admitted in good standing for four years to take California's attorney examination rather than the general bar examination. This liberalizes the old rule that required the "active" practice of law to qualify for the Attorneys' Examination.
The State Bar's MCLE program came under heightened scrutiny this year. To gauge the profession's views on the program, State Bar board member Jeffrey Tidus set up focus groups in rural and urban areas statewide. More than 80 percent of the attorneys who participated in the five focus groups favored retaining an MCLE program. Most differences of opinion focused on certain program specifics -- not on the issue of whether there should be requirements for continuing legal education.
The bar's MCLE program also faced a constitutional challenge this year because certain groups of attorneys are exempt from the program's requirements. As legislation for the program evolved in 1989, the Legislature inserted four exemptions. The state Supreme Court, which adopted the requirement, later added a fifth. This year, however, in Warden v. State Bar of California, an appellate court declared the MCLE program unconstitutional because of its exemptions for public officials, retired judges and law professors at accredited law schools. The California Supreme Court has agreed to review the State Bar's appeal in the case.
A new State Bar accreditation program, approved by the Supreme Court, was established this year to bolster consumer protection by evaluating the organizations that certify legal specialists in California. Attorneys who advertise themselves as certified specialists must have certification from the bar's Board of Legal Specialization or from an organization accredited by the bar. In the past, the certifying entities were not required to follow any standards.
California attorneys regularly grapple with questions and issues involving ethics. The State Bar's Ethics Hotline offers guidance to more than 20,000 callers a year. Various State Bar publications (such as the California Compendium on Professional Responsibility and the Ethics Hotliner) offer assistance as well. This year, the bar expanded its outreach to the local level -- helping the Ventura County Bar Association set up its own ethics committee, and offering similar support to other local bars.
Several rule revisions and proposed changes this year focused on the attorney-client relationship. One such revision (Rule 3-500) clarified the attorney's duty to keep clients reasonably informed of significant developments and to respond to reasonable requests for copies of significant documents, when necessary, to keep the client so informed.
Communications & public education
Every day, parents have questions about the laws governing their children -- and often they do not know where to go for answers. This year, the bar launched a law-related education campaign that offered assistance to parents across the state and, at the same time, worked to enhance the image of lawyers. At the heart of the project is the bar's recently published resource guide, Kids and the Law: An A-to-Z Guide for Parents.
This award-winning, 79-page booklet -- distributed with the help of the California State PTA and local bars -- provides practical, easy-to-understand answers to questions about, for example, graffiti, laws relating to drug possession at school, and parental rights and responsibilities. Its creation was triggered by a State Bar-commissioned survey of 600 children (ages 10 to 14) which indicated that most youngsters see their parents as their most trusted source of legal information.
In just six months time, more than 60,000 copies of the resource booklet have been distributed, upon request, to individual parents, schools, law enforcement, courthouses, and organizations which focus on parents or children. The booklet soon will be available to schools in compact disc form.
The anti-violence "Law Works" program -- a State Bar co-sponsored program which teams lawyers with teachers and students -- expanded this year to 20 communities statewide. In May, student representatives and their teachers traveled from rural and urban areas statewide to present their class projects at the state Capitol.
Another cornerstone of this year's communications and public education projects has involved promoting jury duty. Inspired by last year's award-winning, State Bar-sponsored "Juries on Trial" documentary, posters urging greater response to jury duty were displayed this year on billboards. The documentary also is being edited as a potential courthouse resource for prospective jurors. And a new State Bar pamphlet soon will be available to address common myths and questions about jury service.
Administration of justice
When the State Bar's Commission on Judicial Nominees Evaluation (JNE) -- the statutory commission which rates judicial candidates for the governor -- came under fire last year, a special advisory committee was appointed to evaluate the entire JNE process. The advisory committee, chaired by a California Court of Appeal justice, completed its work in April with 32 recommendations for improvement. The bar's board put its stamp of approval on more than 20 of the proposed changes in July, and will address the remainder this month.
The revised rules call for an open (rather than nomination) appointment process for JNE commissioners, and the appointment of at least one former judge to the commission. In addition, the board decided to include a representative appointed by the governor on the review panel.
The bar also created a new standing committee this year on alternative dispute resolution (ADR). The committee -- composed of attorneys and other individuals with an interest or expertise in ADR -- was formed to analyze and comment on ADR-related proposals; identify issues concerning the relationship of ADR to the practice of law; and plan and administer ADR-related educational programs.
Working to improve the administration of justice also involves proposing changes and taking stands on relevant, timely issues. A few of this year's highlights include:
As in the past, the bar's committees and special sections (18 sections with more than 70,000 attorney members) and the Conference of Delegates (more than 1,000 representatives from local bars) contributed substantially this year to the bar's legislative agenda. Their efforts led to the placement of some 25 bills in the Legislature by mid-August.
This year also marked the advent of a State Bar technical assistance program geared for legislators. Using the Internet and other means, State Bar staff set up the program to help California legislators tap the expertise of the bar's committees and special sections. The program's objective is to provide a means by which legislators and their staff can obtain analysis of a bill and its potential impact, and gather additional in-depth information.
Access to justice
Three out of four indigent Californians do not have an attorney when faced with such family crises as an eviction, a child-custody dispute or a situation involving life-threatening domestic violence. This year, the State Bar pushed hard to curb the legal services crisis, and appealed widely to others for help.
Spearheaded by the State Bar, a new broad-based commission was launched to explore ways of improving access to legal services for California's poor as well as for those who live on moderate means. The newly appointed California Commission on Access to Justice -- judges and attorneys, as well as business, labor and community leaders -- will seek to implement some of the recommendations and funding options proposed last year by a special task force.
Recruiting more pro bono attorneys remains central to the struggle for equal access to justice. In addition to providing ongoing technical assistance to local pro bono efforts, the bar worked this year to encourage and make it easier for all attorneys to volunteer their time. With a rule change, state and federal attorneys can now provide pro bono legal services through qualified programs without losing their exemption from the MCLE requirement. Also this year, the bar's Emeritus Attorney program, which waives the dues of retired attorneys whose services are exclusively pro bono, was expanded by more than 60 percent.
The bar also joined forces recently with the judiciary to form a Bench-Bar Pro Bono Project Advisory Committee. As part of this effort, Chief Justice Ronald M. George has sent out letters urging every judge in California to encourage attorneys to provide pro bono services.
In light of recent changes in the law regarding benefits, California attorneys will face an onslaught of additional requests for legal services. Some individuals may no longer fit the more stringent SSI criteria. And others who do fall within the exceptions to the new rules could risk losing their benefits without legal representation. To help local bars and the legal services community handle this new wave of need, the State Bar and the Public Interest Clearinghouse recently created a resource exchange project and a Web site. In addition, a new coordinating committee is focusing its efforts on training programs, legislation, pro bono recruitment and outreach in response to the legislative changes and recent funding cuts.
Expanding the legal and dispute resolution services available for middle-income Californians is another State Bar goal. In addition to working with local bar associations, courts, community-based programs and organizations to promote ADR, the bar sponsored legislation proclaiming a Mediation Week this year and co-sponsored a roundtable to explore the use of ADR in family law cases and court pro per facilitation programs. Other recent projects include a Spanish version of the bar's consumer pamphlet on ADR; a new committee focused on finding affordable legal services options for moderate-income Californians; and co-sponsorship of a conference this month with the American Association of Retired Persons.
Through the bar's legal services trust fund program, the interest generated from attorney trust accounts helps to support the costs of legal services programs statewide. The grant allocation for 1997-98 jumped 12 percent (due mainly to higher interest rates and decreased service charges negotiated with some banks). While this amount ($10.3 million) is nearly double the grant money allocated in 1994-95, it still falls far short of the $22.7 million distributed in 1992.
When disaster strikes in California, the State Bar routinely steps in to help victims. Shortly after severe flooding this year, the bar's LAW-HELP-CALIFORNIA program notified some 150 programs and associations in more than 40 counties that disaster-related assistance was available. The State Bar -- together with various other organizations -- provides training materials for attorneys who volunteer to help victims. It also helps attorney recruitment efforts at the local level and monitors the improper solicitation of victims. To assist local organizations in preparing for disasters, the bar recently developed a new training manual.
Outreach & customer service
A broad spectrum of lawyers and other interested individuals gathered in San Francisco this summer for the first-ever "Conference for Professionalism in the 21st Century," co-sponsored by the State Bar and the American Bar Association Center for Professional Responsibility. The conference centered around an area of concern identified by many attorneys: the increasing lack of civility, collegiality and respect within the profession. Attendees did more than mull over the problem; they came up with suggestions for reversing the trend.
In another venture, the bar is teaming up with the Judicial Council and the Supreme Court to co-sponsor professionalism and civility panels at "Bridging the Gap" programs offered to new admittees. The panels will be named after the late Supreme Court Justice Allen E. Broussard.
To help California attorneys develop and maintain good client relations, State Bar staff presented more than 40 special programs this past year to local bar associations and law firms across the state. Taking the message to law schools, the bar also launched a soon-to-be-expanded clearinghouse of client-relations resources to assist faculty members in developing their courses.
Diversity and equal access lie at the heart of many State Bar efforts. The bar's Ethnic Minority Relations Committee received a grant from the Judicial Council to work toward greater diversity on the bench -- and has begun taking steps toward that end. The bar's Committee on Women in the Law held several town hall-style meetings across the state to discuss issues which concern women practitioners. The bar's Committee on Legal Professionals with Disabilities hosted a special meeting with the American Bar Association. The Committee on Sexual Orientation Discrimination produced a brochure on the legal rights of gays and lesbians. And the bar's California Young Lawyers Association distributed more than 650 copies of "Opening a Law Office" nationwide, and sponsored numerous MCLE programs for young practitioners.
Members of the bar's various governing boards visited more than 100 local bar and barrister associations statewide this year to listen to local concerns and provide assistance. In the Los Angeles area (District 7), board members and staff held informational dinners for local bar leaders. Similar events are being planned for other districts.
The many State Bar services available via the Internet continue to expand -- and so does the number of visitors (roughly 80,000 a week) to the bar's home page. Launched in 1995 with just 40 pages, the bar's home page now features 4,000 pages of timely information. Attorneys and consumers alike can access the California Bar Journal, the Rules of Professional Conduct, consumer publications (including the new Kids and the Law resource guide), the latest bar exam results, information on pending legislation and the e-mail addresses of legal specialists. A major Internet search engine (Lycos) reviewed Web sites and rated the bar's Web site among the top 5 percent.
The coming year represents the beginning of a new era for our 70-year-old State Bar -- a change in leadership and a relocation to new headquarters. After more than 30 years of service to the bar, Herbert M. Rosenthal is retiring from his position as the State Bar's executive director. Rosenthal -- whose tenure at the bar has included stints as general counsel, secretary to the bar's Board of Governors and, since 1987, as executive director -- plans to step down at the annual meeting this month, then officially retire in January.
Taking over the bar's top staff post will be Steve Nissen. The new executive director was selected after a six-month national search.