California Bar Journal
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Supreme Court
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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," George said.

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 legislature.

"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 additional bill.