|Hertzberg maneuvers to sway Republicans
by NANCY McCARTHY
Talks between Assemblyman Robert Hertzberg, D-Sherman Oaks, author of the fee bill, and the bar's most vocal critics in the legislature did not produce a hoped-for compromise which would enable the measure to win emergency passage.
Hertzberg must persuade four Senate Republicans to support the bill, AB 1669, in order to achieve the two-thirds majority required for urgency legislation.
The bar says that without emergency action in Sacramento, it will run out of money by July following Gov. Wilson's veto of its annual fee bill last October.
The Hertzberg measure, stripped of its urgency clause, was approved by the Senate Judiciary Committee April 21 by a 6-3 vote along party lines.
It became eligible for a floor vote in the Senate April 27, the day hundreds of bar employees received layoff notices.
The bill, in non-urgency form, was approved by a simple majority in the Assembly in March when Hertzberg could not crack solid GOP opposition.
The measure divides the bar into mandatory and voluntary units, restricts lobbying activities, and reduces dues to $419 this year for most attorneys and to $399 next year.
A bill by Sen. Quentin Kopp, I-San Francisco, to abolish the bar and move its discipline and admissions functions to the Administrative Office of the Courts, was defeated in the Senate Judiciary Committee. The Senate Republican caucus supports Kopp's bill.
"This has been a very difficult, intense endeavor, filled with disappointments and setbacks along the way, almost all of them out of our control," said a dejected bar President Marc Adelman. "I hesitate to make any more predictions about what will happen next."
Hertzberg said he is continuing talks with Kopp and Sen. Ray Haynes, R-Riverside, and with Assemblyman William Morrow, R-Oceanside, the chief opponents of what they call "business as usual" at the bar.
The question of governance is a sticking point with Kopp, who wants a smaller, appointed board of governors instead of the current 23-member group of mostly attorneys elected by other attorneys. But both Hertzberg and Adelman said the issue is not negotiable.
"I don't support removing the profession's right to elect its leaders," Adelman said.
As in the Assembly, the key issue among Republican senators is the bar's political activities, which they believe are an improper use of mandatory dues.
The bar believes it should be able to take positions and lobby the legislature about issues affecting "the administration of justice." Oppon-ents, however, say the definition of administration of justice is so broad it allows the bar to take positions on questions unrelated to the practice of law.
Deborah La Fetra, an attorney with the conservative Pacific Legal Foundation, said, "In 15 years of litigating against the State Bar, we have found the bar to be institutionally incapable of limiting the scope of its lobbying."
But Sen. Bill Lockyer, D-Hayward, charged that bar opponents are targeting lobbying only because the bar has taken positions they don't like, particularly its support last year of legislation to raise limits imposed by MICRA on medical malpractice awards.
Lockyer said when in the past the bar routinely took pro-business positions on legislation, "We didn't try to shut it down."
"What is germane to the law?" he asked. "Why can't people who work in the law have an opinion? I care more for the First Amendment than I do for the State Bar."
He also minimized the effectiveness of the bar's lobbying activities, noting that if they "were so superb, we wouldn't be having this hearing."
Kopp agreed that controversial issues such as MICRA fall within the course and scope of the practice of law. His objections to the bar, he explained, are to the "preferential treatment accorded lawyers" who are allowed to regulate their own profession, and to the general "culture" of the State Bar.
Hertzberg rejected a suggestion by Sen. Byron Sher, D-Redwood City, that the controversy could be resolved if the bar simply drops all its lobbying activities. Bar leaders are reluctant to take that step because the bar then would be prohibited from speaking out on any issues which shape the practice of law, such as jury reform and trial court funding.
Hertzberg said he is crunching numbers to determine the feasibility of a suggestion by Haynes that some programs, such as continuing legal education and lawyer referral services, be funded with user fees.
He also is continuing talks with aides to Wilson, who thus far has been unwilling to step into negotiations among legislators.