[Marc Adelman]  Marc Adelman 

Exhausting every conceivable effort

by Marc Adelman
President, State Bar of California

The decision to seek relief from the Supreme Court of California for the State Bar funding crisis did not come easily, nor did it come without significant and substantial debate. It had been the main subject of debate by the board of governors for almost eight months.

Every conceivable effort was made to craft a resolution with the legislature before going to the court, but to no avail.

The magnitude of the debate and the disparity of the positions that have grown between the Democrats and the Republicans in the legislature left us no other option.

Over the last eight months, we had grown farther apart, not closer. Assemblyman Robert Hertzberg’s heroic efforts to craft a compromise with AB 1669 seemed light years away.

The posturing by many in Sacramento left virtually no chance of a resolution before the scheduled layoffs of more than 400 loyal, experienced bar employees.

In addition, it did not appear there could be any resolution before the end of the legislative session in August.

Many angered board members and numerous leaders of regional, specialty and minority bar associations, upset over Gov. Pete Wilson’s veto of our funding bill, urged us to file a petition with the court as early as last November. Clearly, the relationship between the bar and some members of the legislature had reached a new low.

But the filing of a petition with the Supreme Court at that time, without efforts to work out our differences with the lawmakers, would have served only to alienate the legislature even further.

Intensive efforts by bar leaders commenced with scores of meetings with legislators and the governor’s office.

By Thanksgiving, we had identified an author for our emergency bill and, with the concurrence of the governor’s staff, had formulated the makings of a bill that addressed the points raised in the veto message.

I remember leaving my family on Thanksgiving Day, driving to the Capitol with board member Ann Ravel for a meeting the next morning with the governor’s staff. I left the Capitol feeling we had the makings of a bill the governor would sign.

Issues involving the Conference of Delegates and sections, reduced licensing fees, increased efficiencies, lobbying restrictions and mandated functions had, for the most part, been resolved.

Hertzberg had that same understanding two months later when he introduced AB 1669. The bill would not have been introduced without, at the very least, a framework that would have been approved by the governor’s office.

What has transpired since then has been truly disheartening, frustrating and unbelievable. As layoffs loomed closer, Democrats and Republicans in Sacramento moved farther apart. The potential loss of valuable employees seemed irrelevant to the discussion.

Issues involving IOLTA, access committees, legal services, MCLE and board governance surfaced, causing negotiations to harden and, for the most part, to end. My daily calls and numerous visits to Sacramento to prompt meetings, mediation or discussions were ignored. Promises of negotiating sessions and meetings went unfulfilled.

Clearly, nothing the bar did disturbed the stalemate.

Hertzberg voluntarily amended AB 1669 five times to accommodate further requests and concerns of the governor and others. All the amendments were good faith efforts to respond to bar critics. Each was greeted with a call for more. The governor’s recent proposal for a resolution was rejected by Democrats. Prospects for any emergency legislation are remote.

All one hears from Sacramento is that the bar isn’t willing to reform.

That we are trying to circumvent the governor’s wishes.

That the shutdown of the attorney discipline system was not motivated by a lack of funds but set in motion for political purposes and effect.

That despite the impasse in the legislature, our request to the Supreme Court for relief was nothing more than a “slap in the face of the legislative process.”

I know otherwise. No matter what we tried to do to fashion a solution, it was dismissed.

The final straw came when Hertzberg introduced another bill directed toward supplementing the discipline system. The stopgap measure would have assessed a $100 per member fee merely to keep discipline operating at a reduced level for the remainder of this year.

Although the bill was moved out of the Senate Judiciary Committee on a partisan vote, the debate clearly demonstrated it could not possibly attain a two-thirds vote for emergency enactment.

The debate encompassed accusations that the bill was introduced at the insistence of bar leaders in order to circumvent the governor’s proposal and resist impending reforms. That the effort was just another attempt by the bar to practice business as usual.

I knew otherwise.

The State Bar did not conspire, did not support, indeed, did not even know about the measure until it was introduced.

During this crisis, I have heard comments and criticisms from thousands of members. I shared that information with Assemblyman Hertzberg.

AB 1669 was crafted with the concerns of the membership, the needs of the organization and the governor in mind.

Passage should have been accomplished long ago.

When I reflect on what forced us to request Supreme Court intervention, I cannot help but recall the remarks of one legislator. He boasted of the power the legislature now possessed over the State Bar in these negotiations. “When you have them by the family jewels,” he said, “their hearts and minds will follow.”

So much for the premise of separation of powers and good faith bargaining.