What lesson does the bar dues debacle teach us? This really is a multiple choice question. Choose the best answer from the following:
A. Contrary to popular perception, the legislature is made up mostly of non-lawyers who generally loathe the legal profession.
B. It may have been a mistake to include a clause in our lobbyist's contract offering him a reward for getting our dues bill through, especially since it violates the law.
C. People think we're arrogant when we pay some of our bar officials more than judges or the governor.
D. The threat to disembowel the attorney discipline system produces yawns in Sacramento.
E. As a public body, the State Bar cannot fund political campaigns, and, thus, with 10 times the membership, has 1/10th the political power of the Consumer Attorneys of California.
Answer: None of the above. It was all known previously.
I choose a different answer, predictably conforming to my pre-existing critique of the bar. The bar's recent dues debacle teaches the lesson that no public agency, exercising the broad power of The People, can consist of 23 persons, 17 of whom are elected by the group being regulated.
This essential cartel structure is at the root of the bar's disrespect and impotence. Imagine if the state's physicians got together and decided to elect 17 "pooh-bah" docs to meet together and decide who can and who cannot be a physician, who should be charged with disciplinable offenses (enforcing state law), and what rules should govern how the profession operates. We would be the first to start howling.
If you want to exercise police power functions, which derive from The People, you better structure the governing body with a public official appointive or elected source of authority. If not, you are a medieval guild, not a regulatory agency.
Of course, the bar's defenders will rise with the "third branch" song -- "We are different as creatures of the court and everything the bar does is simply a recommendation of the court." Sure. The turnip truck is parked outside.
Here's an idea. Cut the Board of Governors to a workable group of 11. Have the Supreme Court appoint six members, the governor three, the Assembly speaker one, and the Senate Rules Committee one. Call it the Board of Governors of the State Bar and give it all the agency powers to admit, formulate rules of professional conduct, and discipline those who violate them. Then take the Conference of Delegates, the sections, and all the bar's existing trade association activities and sever them off into a voluntary bar association. The latter can lobby and do all the other things those who are now gleefully torturing us are doing. The former can regulate with the dignity and independence appropriate to our profession and to the basic tenets of democracy. You want a precedent? How about every other trade and profession in the state?
If we want to be recognized as part of a "noble profession," we must behave accordingly. Self-serving regulation of ourselves by ourselves projects ignorance, not nobility.
Our profession is not held in respect by The People. That is dangerous for us, and for the rule of law we all love. We have to start a long road up, and it will not come from the bar's traditional approach of public relations projects. It will come from increased pro bono work, revision of the rules of civil litigation (especially discovery abuses), minimization of disputes, unflagging -- often painful -- courtesy to each other, serving a lot more as officers of the court and a lot less as hired guns, providing the middle class with access to justice, policing our billing practices, et al. Our problem is not solely the miscreant outcasts who steal from clients; it is many of our "tribal rules." While tribes can be harsh with their own outcasts, they tend not to change their own rules.
Most of all, we can demonstrate that we deserve the mantle of principled professionals, and surrender authority over our own regulation to broader interests, reflecting a broader base of legitimacy. Such a change is in conformity with our own stated values, and it signals to the body politic far more than any public relations gesture can accomplish.
We not only want to be respected; we want to warrant that respect. Acknowledging the importance of authority outside of our profession in such a clear and unmistakable manner will allow all of us to sit a little higher in the saddle. And, by the way, under such a format, the next time the governor and legislature fashion a little midnight raid, they will be attacking the appointees of the court, governor and legislature -- not the reviled cartel. For those of us totally unconvinced by democratic principles (apparently about 55 percent of us), consider that.
Robert C. Fellmeth is Price Professor in Public Interest Law at the University of San Diego School of Law and former State Bar discipline monitor..