California Bar Journal
spacer.gif (810 bytes)
Unanimous ruling
spacer.gif (810 bytes)
(continued from front page)
spacer.gif (810 bytes)
no experience whatsoever in the highly specialized area of attorney discipline. And in order to recruit and train, we first have to restore our human resources department, which was also gutted as a result of the layoffs."

Some services, such as the ethics hotline for attorneys and the mandatory fee arbitration program, can be reactivated virtually overnight if the bar can recall trained professionals in those areas.

Other operations, particularly those aimed at reducing the huge number of uninvestigated cases, likely will take longer.

The backlog now stands at more than 7,000 cases, far more than the 4,000-case backlog which prompted the overhaul of the discipline system more than a decade ago. It took two years to reduce the number of outstanding complaints then, and the work was done when the bar was much stronger than it is today.

How to tackle the unresolved consumer complaints entails complex logistics. For example, at the front end of the system, the complaint hotline, which was shut down in April, must be staffed by trained and competent intake personnel, Nissen said. They, in turn, must be supported by attorneys and investigators who can pursue complaints.

"We can't just turn on the phone lines without other segments of the system in place, or we'll be unable to properly process complaints," he said.

Because the system will not be able to operate as it did when fully funded, a variety of changes are under consideration, ranging from what offenses to prosecute to whether to send warning letters to errant attorneys.

Chief trial counsel Judy Johnson has prepared a list of proposed modifications, including limiting operation of the intake line to three days, streamlining or eliminating probation, declining prosecution of certain allegations if a client is not harmed, asking local bars or volunteers to handle assumption of practice matters, and exercising discretion to not file misdemeanor conviction referrals, with some exceptions.

Decisions on such changes most likely will be made by bar officials with input from special master Lui.

The stopgap funding was sought by the bar as a result of what bar president Ray Marshall said is a crisis: unregulated attorneys and a backlog of discipline cases which the bar is unable to investigate or prosecute.

In ordering the assessment, the court said it was responding to "an unprecedented emergency threatening the protection of the public, the integrity of the legal profession and the interests of the courts."

It specifically noted that there was no suggestion in the legislature that the bar's discipline operation be eliminated. "In fact," the opinion states, "the disciplinary system itself was not the focus of criticism by those who sought to reform the bar's structure or governance."

In a 59-page decision, the court concluded that it has the inherent authority to order attorneys to pay a regulatory fee, and that the State Bar should continue to operate the discipline system, with financial oversight by the special master.

"Such an approach represents the least intrusive means of providing protection for the public pending a legislative resolution of the outstanding issues regarding the bar's functions, and best preserves the status quo until agreement can be reached," wrote Chief Justice Ron George in a decision joined by the other six justices.

Gov. Pete Wilson, whose October 1977 veto of the bar's annual dues bill precipitated its financial crisis, had asked the court to assume control over the discipline system, a suggestion the court rejected as impractical and inefficient.

It also rejected arguments that court intervention in a dispute involving other branches of government amounts to a violation of the separation of powers. "The State Bar is not an entity created solely by the legislature or within the legislature's exclusive control, but rather is a constitutional entity subject to this court's expressly reserved, primary, inherent authority over admission and discipline," the court wrote.

The justices were careful, nonetheless, to stress that the special fee is interim in nature, narrow in scope and does not affect the critical issues which proved divisive enough to sink legislation in Sacramento.

They acted, wrote George, "because the administration of justice is at risk."

The special assessment includes $171.44 for discipline and $1.56 for the special master's administrative costs. In addition to the $173, active attorneys also must pay a $77 fee required by statute.

For the second straight year, the bar also asked active attorneys to pay voluntary dues, although in the much-reduced amount of $145, bringing the total to $395.

In the bill sent Dec. 31 to the 160,000-plus attorneys in California, Marshall said the bar still faces severe financial problems. "Even with a reduced budget and a wide range of efficiencies and cost savings measures," he wrote, "the State Bar still needs your help to assure that the discipline system will operate the full year and that other essential services for members and the public can be provided."

Because the Supreme Court ordered that a special fund be created to pay for discipline activities, active attorneys are required to submit two checks this year, one to the State Bar and another to the "Special Master's Attorney Discipline Fund."

Active attorneys are required to pay $77 to the State Bar, of which $27 goes to discipline, $40 to the client security fund, and $10 to the building fund. Attorneys wishing to pay voluntary dues should add that payment to the $77.

Inactive attorneys are required to pay $50; $10 to the building fund and $40 to the client security fund. They are not required to pay the special assessment.

Dues must be paid by Feb. 1, 1999. A 50 percent penalty will be imposed on attorneys who do not pay fees by March 15.

Although the board of governors had decided in September to offer credits or refunds of voluntary dues paid last year in the 1999 dues statement, they reversed themselves last month. Instead of a credit or refund offer this year, the board voted to extend the offer only "once there is a legislatively authorized fee bill."

About 25 percent of the state's attorneys paid the voluntary dues in 1998, generating about $10 million.

Special master Lui has determined that none of the $173 special assessment can be used for any refund purposes.