Destroying the unified bar


The Hertzberg bill destroys the unified bar. The Conference of Delegates, which has historically provided a forum for minority and smaller bar associations, will be tossed over the side in mid-1998. In 1999, the State Bar will have to cut the sections adrift. No doubt, what little is left of the State Bar committees will come under attack and be cast away in the future. Yet, incredibly, by a vote of 10 to 4, with three public members and one lawyer abstaining, the State Bar Board of Governors voted to support this bill.

The problem I see with the proposed new voluntary bar association is that it will not represent all the attorneys of the state. Who is going to join this association?

I suspect it will be the same people who currently join the American Bar Association: large firm attorneys, plus a few good souls who for one reason or another see the benefit of such an organization. We shall lose the advantages we currently have of a statewide constituency. Small bar associations, minority bar associations and those who believe in the unified bar will all be losers.

The main objection of the critics of the State Bar has been the use of mandatory dues for the sections and the conference. There was an alternative that, for reasons that are a mystery, was not taken. Many, including myself, were prepared to support a bill that would have called for the sections and the conference to be self-supporting within the umbrella of the State Bar. Why, then, did the board vote to support this bill?

Certainly, it is not the case that the vote of the State Bar to support the Hertzberg bill was taken in light of careful analysis by the board of governors. The board received the draft of the bill on a Friday. At the meeting to discuss the bill on the following Monday, it was apparent there were a number of major questions about what the bill would do.

At the time of the vote, no staff analysis of the financial impact of the bill was presented to the board. The board has been told in the past that it costs about $425 to fund the core activities of the State Bar. The Hertzberg bill sets the top fee at $419 in the first year and $399 in the second year.

We were told that the fee set in the Hertzberg bill was not arrived at by any analysis of the budget but, instead, represents an assessment of what is politically possible. So, your representatives, or at least 10 of them, voted for a bill they acknowledge to be ambiguous when they did not know the financial consequences of this vote.

Why? Well, we were told that this was the best that could be accomplished. We were told that if we did not support this bill, something worse, the Kopp bill, would be forced on us. We were told that we had no alternative.

Not true. There is an alternative. Defeat the Hertzberg bill.

Then, once it is apparent that the effect of the governor’s veto is to destroy the regulatory functions that the courts need, petition the Supreme Court to adopt a dues structure. This has been done in other states.

Critics of this approach point out, correctly, that we do not know what the Supreme Court will fund. My response to those critics is that we know that the court will fund at least the core functions, and that is all we get from this bill.

More importantly, there is every likelihood that the Supreme Court will recognize that it makes sense to allow the State Bar to have self-funded sections and a self-funded Conference of Delegates.

Palmer Brown Madden is a partner with McCutchen Doyle Brown & Enersen LLP in Walnut Creek and represents District 3 on the board of governors.