|The Supreme Court called the hearing after receiving the bar's petition
and a simultaneous request from Wilson that the court assume control over the discipline
system. It also heard from several lawmakers who questioned the court's authority to
intervene in a political impasse.
Dan Kolkey, Wilson's legal affairs secretary, said
Wilson vetoed the bar's spending bill, which would have set dues at $458 annually, because
he believed the fee was excessive and the bar was in serious need of reform. Levying a fee
now "would undo the governor's veto," Kolkey said.
Because the bar is a "legislative creation," he argued, any interference by
the court violates the separation of powers.
"But the legislature hasn't acted and that's why we're here, isn't it,"
The chief justice also said he was "troubled" by the governor's request that
the court assume control over the discipline system, which had a pre-veto budget of $41
million, without any additional funding.
When Kolkey suggested the court could seek a supplementary allocation from the
legislature, George said, "We don't always get what we ask for. I question how the
court would pay for this."
Most of the witnesses agreed with the bar's argument that the Supreme Court has the
inherent authority to order lawyers to pay fees. The court is responsible for regulating
the legal profession, a power which includes disciplining lawyers in order to protect the
public, said assistant general counsel Larry Yee.
Even Sen. Quentin Kopp, I-San Francisco, who has long criticized the bar, agreed that
the court has the authority to assess a fee, although he favors transferring the
discipline system to the Administrative Office of the court.
Calling the case political, Kopp admonished the court not to appear to be taking sides.
The legislature did not "fail" to act on a compromise bill to fund the bar,
Kopp said, charging instead that the bar itself opposed the final bill before the
"We have a spectacle of day-by-day, lawyers defaulting on their obligations to
clients, created by the State Bar itself," Kopp said.
The justices asked questions ranging from whether the bar could siphon to the
discipline system the profits from the sale of its Franklin Street headquarters in San
Francisco (no, it's illegal) to the possibility of a special legislative session to
resolve the discipline issue (unlikely, said Kolkey).
Justice Ming Chin asked several times whether any new regulatory funds could be
restricted to prosecuting only the most egregious disciplinary matters.
State Bar Court Presiding Judge James Obrien, who characterized the proposed $171 fee
as "a minimum," explained that it costs money just to identify the most
egregious cases among the 7,000 backlogged matters. "That step alone will take
money," he said.
The bar court normally tries to dispose of 90 percent of its cases within a year,
Obrien told the court. With the near shutdown of the discipline system, 30 percent of the
cases have now been in the pipeline for more than a year.
George asked several witnesses about the possibility of appointing a special master to
oversee how funds generated by a special assessment would be used. Chin asked whether a
special master could actually determine what the fee should be.
"It would be appropriate but not practical," said Jerome Falk, a San
Francisco attorney representing the state's four largest urban bars.
"The real safeguard is limiting the money to discipline and putting in place a
special master," Falk said. "You're not putting in the bar's hands the money to
buy a Cadillac."
Kolkey said appointment of a special master would be "consistent with the
governor's position," but he said that person should both determine what disciplinary
functions should be funded and how they should be funded.
Falk and Yee also told the court that imposing a special assessment is the least
intrusive action it could take, a notion with which George appeared to agree.
As requested by the bar, the majority of the $171 would be used by the chief trial
counsel for complaint intake and prosecution. The remainder would be divided among the
State Bar Court, fee arbitration, competence, membership records and that part of the
general counsel's office related to discipline.
The bar hoped for quick action on its petition. Its annual fee bill - $77 under
existing statute - is scheduled to be mailed in early December. If the court were to order
the additional assessment after that time, it would cost another $160,000 to mail an