Hertzberg: The option is, ‘Fix it, or lose it’


No funds may be used after July 1, 1998, to fund the Conference of Delegates or after Jan. 1, 1999, to fund the bar's 18 practice sections.

The bill authorizes the creation of a voluntary bar association, which could include the Conference of Delegates, the sections and a newspaper.

Hertzberg discussed his proposed legislation with the California Bar Journal.

CBJ: Why did you agree to carry this bill?

HERTZBERG: There were several reasons. Being a lawyer, I understand the issues. I have good bipartisan relationships and the ability to work with the governor's office. And I just thought it was important to preserve the State Bar and important to those who are in government to step up to the plate on hard issues. Just because something is a tough issue doesn't mean we should run from it.

CBJ: There is significant pressure to both depoliticize the bar and reduce dues. Were those your primary motives in drafting this legislation?

HERTZBERG: There is an incentive to depoliticize the bar and that was my goal in removing the Conference of Delegates. What I was trying to do is both depoliticize the bar and reach a compromise so we can keep all the programs that are in existence that are deemed important. The options were pretty slim -- either you fix it or you lose it.

CBJ: Was it also your goal to bifurcate the State Bar?

HERTZBERG: It was my intention to bifurcate. Nobody has a problem with discipline, admissions, membership records and the basic administration of the profession.

The criticism of the bar is that it's always more of the same. In terms of administration, this bill sets up a couple of very important things.

By setting up an annual independent audit, we'll have outside auditors who will vigorously pursue all financial records and create an accurate financial picture.

Second, by setting up a voluntary organization, you're going to have a secondary bar to jealously guard its turf. It's going to want to oversee lobbying and areas outside the jurisdiction of what the bar does normally. We want to insure responsibility over advocacy.

CBJ: How can the legislature set up a voluntary organization?

HERTZBERG: I think all we really want to do is give direction. Obviously we don't have any power over it (a voluntary bar), but basically we're sending a message of how we want it done.

CBJ: Do you think the bill will get Gov. Wilson's approval?

HERTZBERG: I don't know if it'll fly with the governor. I suspect there will be a lot more pressure to cut the dues more, somewhat from the governor but to a large extent from Republicans. The $419 was meant to give the current (bar) administration a transition. I think it's possible to cut even more.

This is an exceedingly difficult task. It's hard to find a lot of support for lawyers. Generally, non-lawyers don't care, and those who are more activist are upset because we're changing the nature of the bar. This is very, very sensitive and it's difficult to get support.

CBJ: Have you counted votes in the legislature yet?

HERTZBERG: I don't know about support. I have to get it from both ends of the political spectrum and I'm trying to find a comfortable middle ground.

The dues may have to go below $400 to get it through. I haven't counted votes yet. The problem is, there's no constituency out there who wants to support lawyers.

CBJ: What other problems do you foresee?

HERTZBERG: There are problems with Republicans on IOLTA. I hope we can convince the governor to keep it in.

The governor's office is saying, "Let's have lawyers regulated and look like all the other professions. For example, doctors have a separate lobbying group and magazine... Why should lawyers be any different? They should look like other groups." That's the kind of model the governor's office is talking to me about.

CBJ: Do you think Sen. Quentin Kopp's bill might pass?

HERTZBERG: Kopp wants to completely dismantle the bar and put it under the courts. I don't know if he has a chance. Kopp is a very, very bright man and I don't put anything past him. He's a very persuasive guy.

CBJ: The Board of Governors voted 10-4 with four abstentions to support your legislation. Were you disappointed the board's vote was not unanimous?

HERTZBERG: I was not disappointed in their vote. I understand it's difficult. It's their bill and they want to build a team approach.