The State Bar of California is a unified bar, in which membership and
fees are compelled by State law as a condition of practicing law. Annual membership fees are used to finance the
State Bars broad statutory mission to advance the science of jurisprudence and to
promote the administration of justice. The bulk of the State Bars activities are
related to admission, discipline, and regulation of attorneys and to other programs that
enhance lawyer ethics and competence or improve the quality of legal service and the
justice system. The State Bar has engaged in such functions as administering the bar
examination, formulating rules of professional conduct, disciplining members for
misconduct, administering mandated continuing legal education requirements, conducting a
variety of education programs for members and the public, studying and recommending
changes in legislation, cooperating with the Judicial Council, providing various member
services and facilitating relations among national, regional and local voluntary bar
associations. Pursuant to statute, the State
Bar also administers the Client Security Fund, the Legal Services Trust Fund and the
Commission on Judicial Nominees Evaluation and assists the California Law Revision
Commission and other governmental agencies.
The constitutionality of a unified bar was first upheld in Lathrop v.
Donohue (1961) 367 U.S. 820 [81 S. Ct. 1826, 6 L.Ed.2d] and affirmed in Keller v. State
Bar of California (1990) 496 U.S. 1 [110 S. Ct. 2228, 110 L.Ed.2d 1]. In Keller, the U.S.
Supreme Court addressed the unanswered question in Lathrop of whether mandatory bar
membership fees may be used to support those activities which are political or ideological
and with which a member disagrees. The Supreme Court held that the State Bar may
constitutionally use mandatory fees for expenditures that are necessarily or reasonably
incurred for the purpose of regulating the legal profession or improving the quality of
legal service available to the people of the state, including those with political
or ideological coloration (such expenditures are hereinafter referred to as chargeable).
However, objecting members may not be compelled to pay for the expenses of activities
having political or ideological coloration which are not reasonably related to
the advancement of such goals (such expenditures are hereinafter referred to as nonchargeable).
The Supreme Court indicated that the procedures outlined in its
decision in Teachers v. Hudson (1986) 475 U.S.292 [106 S. Ct. 1066, 89 L.Ed.2d 232] would
accommodate objecting members. In past years, this procedure was governed by the
provisions of Article IA of the Rules and Regulations of the State Bar (Article IA).
However, due to the inapplicability of some provisions of Article IA in light of the
forward-looking restrictions which have been placed on the State Bars legislative
and related activities in SB 144 (Stat. 1999, ch. 342), as well as changes in the Bars
budget and funded programs due to the State Bars recent funding crisis and reduced
funding under SB 144, the Board suspended Article IA and instead adopted interim
procedures. The procedures, which have been adopted by the Board of Governors of the State
Bar on an emergency basis and are printed below, follow the due process requirements set
forth in Hudson for the collection of compulsory fees: (1) adequate explanation of the
basis of the fee; (2) reasonably prompt opportunity to object and have objections heard
before an impartial decision-maker; and (3) escrow of amounts reasonably in dispute
pending adjudication of the challenge.
Availability of Lobbying Deduction
in 2000 Membership Fee
Pursuant to its Hudson procedures, the Board of Governors has
reviewed the budgeted activities of the State Bar for 2000 and determined that all of the
planned activities are chargeable to the annual membership fee. In addition, the Board
determined that each of the seven legislative proposals that it adopted for 2000 are
chargeable to the annual membership fee. The interim procedures provide that, if the Board
of Governors adopts additional legislative positions, the State Bar will publish a listing
of these positions including the Boards determination as to whether the positions
are chargeable and provide members an additional opportunity to challenge. A description
of budgeted State Bar activities for 2000 and a description of the Board of Governors
legislative program appears in the following section, Descrip-tion of State Bar
Programs for Year 2000. Although the Board of Governors has determined that all
planned activities are chargeable to the annual membership fee, pursuant to the provisions
of §6140.05 of the Business & Profes-sions Code, any member who elects not to support
lobbying and related activ-ities by the State Bar outside of the parameters established in
Keller has been given the opportunity to deduct $5 from their 2000 membership fee (Lob-bying
Challenges To Chargeable Expenses And
The State Bars interim Hudson procedures provide members the
opportunity to dispute the accuracy of any of the determinations by the Board of Governors
that a State Bar activity is chargeable on the grounds that a challenged activity has
political or ideological coloration and is not reasonably related to the State Bars
purpose of regulating the profession or improving the quality of legal service to justify
the use of mandatory fees. (A member who wishes to make such a challenge is hereinafter
referred to as challenger). A challenger must make his or her challenge
individually and in writing. The written challenge must include the challengers
name, address, telephone number and bar membership number and should identify the
challenged activity or legislative position. A challenger must sign the challenge,
postmarked on or before February 17, 2000, which is the 45th day following the publication
date of this issue of the California Bar Journal, or delivered in person to the State Bars
San Francisco office by 5:00 p.m. on or before February 17, 2000, the 45th day following
the publication date of this issue of the California Bar Journal. Challengers are still
required to submit payment of the 2000 membership fee less only the Lobbying Deduction.
ANY WRITTEN CHALLENGE MUST BE MAILED OR DELIVERED BY THE DEADLINE TO:
JEFFREY T. GERSICK
ACTING EXECUTIVE DIRECTOR
THE STATE BAR OF CALIFORNIA
180 HOWARD STREET
SAN FRANCISCO, CALIFORNIA 94105-1639
THE DEADLINE IS FEBRUARY 17, 2000, WHICH IS 45
FROM THE DATE OF PUBLICATION OF THIS ISSUE
OF THE CALIFORNIA BAR JOURNAL.
Upon receipt of a properly submitted and timely challenge, the State
Bar shall place the disputed amount of the challengers fee in an interest-bearing
At its next regularly scheduled meeting following the deadline or as
soon thereafter as the matter may be considered, the Board of Governors shall decide
whether to give a pro rata refund to the challenger or to submit the dispute for
expeditious arbitration before an impartial arbitrator.
If the dispute is submitted for arbitration, the Board in its
discretion may consolidate all challenges. The challenger(s) and the State Bar may select
a mutually agreeable, impartial arbitrator. In consolidated challenges, the arbitrator may
be selected by an agreement between the State Bar and 75 percent of the challengers. If
there is no agreement on an impartial arbitrator within 30 days following the decision to
arbitrate, an impartial arbitrator will be appointed by the American Arbitration
Association. The State Bar may extend the time to select the arbitrator, not exceeding an
additional 30 days. The arbitration shall be heard at the San Francisco or Los Angeles
office of the State Bar, as determined by the State Bar. The proceedings shall be informal
in nature, and the State Bar shall have the burden to show that the disputed matters are
within the scope of permissible activities for which mandatory fees may be used under the
constitutional standard in Keller. The challenger(s) will be given an opportunity to
present their own evidence and to present written arguments in support of their
challenge(s). The arbitrator will issue a written decision and award.
Description of State Bar Programs for
Adjudication: The purpose of the Discipline and Adjudication program is to
protect the public by regulating the conduct of California lawyers.
Receive, review and analyze incoming communications which relate to
disciplinary inquiries, criminal convictions and complaints against attorneys. Categorize complaints by type for appropriate
actions by way of referral to investigation and prosecution; mediation; or referral to
other entities (Bus. & Prof. Code, §§6043, 6044, 6044.5, 6049, 6092.5 subd. (f) et
seq.). Investigate allegations of unethical
and unprofessional conduct against attorneys who may have violated provisions of the State
Bar Act, Rules of Professional Conduct or other standards of professional conduct. Prosecute attorneys in formal disciplinary
hearings in the State Bar Court for violations of the State Bar Act or Rules of
Professional Conduct. Activities include, as
appropriate, the preparation of formal disciplinary pleadings, conduct of formal and
informal discovery, and representation of the State Bar as Trial Examiners in the actual
hearings and subsequent review proceedings (Bus. & Prof. Code, §§6043, 6044, 6049,
6077, 6078, 6092.5 et seq.).
b. State Bar Court
Adjudicate formal disciplinary matters resulting in the final
imposition of discipline or, in certain instances involving suspension or disbarment, the
recommendation of discipline to the California Supreme Court (Bus. & Prof. Code,
§§6086.5, 6086.65; Cal. Rules of Court, rules 952, 953, 954).
c. Client Security Fund
Receive, evaluate and process applications made to the Fund by
persons who have suffered monetary losses due to dishonest conduct of lawyers and
authorize recovery to eligible clients out of funds collected for this purpose (Bus. &
Prof. Code, §6140.5).
d. Fee Arbitration
Administer a statewide program for arbitrating fee and cost disputes,
and arbitrate those disputes that are not within the jurisdiction of an approved local bar
association program (Bus. & Prof. Code, §6200).
Maintain and improve the standards of the legal profession to enhance
attorney competence through: (1) promulgating and strengthening professional standards to
protect the public; (2) assisting members to comply voluntarily with such standards (e.g.,
Ethics Hotline, California Compendium on Professional Responsibil-ity, Lawyers Personal
Assistance Program); and (3) planning and development of programs to enhance attorney
competence (Bus. & Prof. Code, §§6076, 6077).
Justice: The purposes of the Administration of Justice program are: (1) to
administer the work of the Commission on Judicial Nominees Evaluation as mandated by
Government Code §12011.5; (2) to improve the quality and delivery of legal services
available to the people of the State; and (3) to aid in the advancement of the science of
jurisprudence and improvement of the administration of justice. This program provides
specialized professional advice, analysis, studies and information to the judicial,
legislative, and executive branches of government.
a. Research and Court Reform
Provide assistance to State Bar efforts to improve court rules,
procedures, structures, and staffing and to coordinate these efforts with the Judicial
Council, Administrative Office of the Courts, California Judges Association, California
Law Revision Commission and other entities involved in court improvements. Provide staff support for Standing Committees on
Administration of Justice, Appellate Courts, Federal Courts, and Alternative Dispute
Resolution (Cal. Const. Art. VI, §6; Bus. & Prof. Code, §§6031, Gov. Code, §8287).
b. Commission on Judicial Nominees Evaluation
Serve as liaison to the Governors Office and administer the
work of the Commission which evaluates the qualifications of judicial candidates whose
names are submitted by the Governor (Gov. Code, §12011.5).
purposes of the Governance programs are to govern and manage the activities of the State
a. Board of Governors
The Board of Governors is charged with the executive function of the
State Bar and the enforcement of the provisions of the State Bar Act. (Bus. & Prof.
b. Legislation for the Board of Governors
Provide technical assistance to legislators, legislative staff and
committees, testify at hearings, and forward or draft letters of support/opposition on
certain bills relating to either regulating the legal profession or improving the quality
of legal services. A list of legislative proposals approved by the Board of Governors for
the year 2000 appears below. Monitor bills by
reviewing legislative measures and amendments (Bus. & Prof. Code, §6031).
i. Enforcement of Judgments: Renewal of
Judgment Lien on Personal Property
Amends Code of Civil Procedure §§697.510 and 697.670 to allow judgment liens on
personal property to be renewed for additional five-year periods.
ii. Arbitration: Dismissal For Delay In Bringing Claim
Amends Code of Civil Procedure §1292.6 to add a five-year time limit for commencing
arbitration under Title 9 (contractual arbitration).
Motion to Compel Further Responses
Recommends that the Judicial Council amend Rule 335(a) of the California Rules of Court to
allow a court to retain jurisdiction to hear a motion to compel even if supplemental
responses have been served during the pendency of the action.
Detainer: Service by Court Clerk Instead of Non-Party
Amends §1013(a) of the Code of Civil Procedure to permit service of a responsive pleading
in unlawful detainer actions by the court clerk.
Amends Civil Code §1950.5 to eliminate the use of double negatives in its text.
Liens: Petition to Remove Untimely Filed Liens
Amends Civil Code §3154 to expand the expedited procedures to expunge mechanics
liens that are untimely filed.
vii. Probate: Stay
of Judgment on Appeal
Amends Probate Code §1310 to allow money judgments in probate cases to be stayed on
appeal in the same manner as civil money judgments.
Administration of the
Profession: The purposes of the Administration of the Profession program are: (1)
to provide and promote statewide competence education programs; (2) to assist others in
providing and promoting statewide competence education programs; (3) to protect the public
through the operation of certification programs; and (4) to maintain membership records
and manage member billings.
a. Certification/Legal Education
Establish effective, affordable and accessible Minimum Continuing
Legal Education (MCLE) programs for California lawyers and develop and
implement a comprehensive program to assist others in establishing effective, affordable
and accessible MCLE programs for California lawyers (Bus. & Prof. Code, §6070, Cal.
Rules of Court, rule 958). Develop standards for certification programs (e.g., Law
Corporations, Limited Liability Partnerships, Practical Training of Law Students, Foreign
Legal Consultants, MCLE,) and efficiently administer such programs (Bus. & Prof. Code,
§6070; Cal. Rules of Court, rules 958, 983, 988).
b. Membership Records and Billing
Maintain member records, prepare member fee statements and monitor
billing. (Bus. & Prof. Code, §§6002.1,
Program Development: The
purpose of the Program Development program is to provide assistance in the delivery of
civil legal services to the public, by working with legal services providers and bar
associations to provide a variety of public service programs, including: pro bono legal
services programs, lawyer referral services, pro per clinics, community-based dispute
resolution centers, programs to improve access to the courts, and fee arbitration
programs. The program also provides limited staff support to the California Young Lawyers
Association and the State Bars access and fairness standing committees.
a. Program Development
Provide technical assistance and support to bar associations and
legal services programs to develop or expand the availability of legal services to low-
and middle-income people in the State. Program development activity focuses on promoting
pro bono publico efforts, lawyer referral services (LRS) and dispute
resolution programs (Bus. & Prof. Code, §6068, subd. (h)).
b. California Young Lawyers Association
Foster a greater understanding of, and encourage interest among,
recently admitted and young lawyers in the programs and activities of the State Bar.
Provide a forum for the exchange of ideas in order to assist the State Bar in its programs
(Bus. & Prof. Code, §§6013, 6013.4).
c. Access & Fairness Standing Committees
Work to increase participation in the administration and governance
of the State Bars programs and activities of attorneys who have been
under-represented, such as women, ethnic minority, gay, lesbian, and attorneys with
purpose of the Communications program is to provide information to the public and
membership about the State Bar, law, lawyers and the legal system. The objectives within the communications function
are: (1) to promote increased public awareness and understanding of the law; (2) to
provide ongoing information to the news media about the State Bar, law, lawyers and the
justice system; and (3) to publish newsletters, brochures, and other materials offering
timely information about the State Bar, its activities and programs, educational
opportunities, topical legal issues and general developments in the practice of law or
law-related activities and organizations (Bus. & Prof. Code, §6092.5, subd. (h)).
General and administrative expenses are incurred to provide staff and operational support
to all programs and activities of the State Bar in the following areas: human resources;
finance; financial planning and analysis; data processing operations and development;
printing; purchasing; building management; law library and archives; mail; and legal
counsel and advice.
INTERIM PROCEDURE RE: ANNUAL MEMBERSHIP FEE,
CHARGEABLE AND NONCHARGEABLE AMOUNTS, REDUCTION, APPEALS
Section 1. Reduction
of Annual Membership Fees for 2000
A. Section 6140.05 of the Business and Professions
Code provides that each member of the State Bar shall be provided the option of deducting
five dollars ($5) from the annual membership fee if the member elects not to support
lobbying and related activities by the State Bar outside of the parameters established by
the United States Supreme Court in Keller v. State Bar of California. The Board of
Governors has reviewed the State Bars budgeted activities for the year 2000 and
determined that all of the planned activities, other than legislative activities, are
chargeable to the annual membership fee. Therefore, the Board of Governors set the advance
reduction available to members at five dollars in accordance with the provisions of
B. The January issue of the California Bar Journal
shall contain an explanation of the 2000 membership fee and the basis for the advance
reduction approved by the Board of Governors. This notice shall contain a general
description of State Bar activities for 2000 and a listing of the legislative program
adopted by the Board of Governors, including a determination regarding whether each
legislative proposal falls within the parameters established by Keller.
C. If the Board of Governors adopts additional
legislative positions during the course of 2000, the State Bar shall publish a notice
listing these legislative positions and including a determination regarding whether each
legislative proposal falls within the parameters established by Keller. The notice shall
be published in the California Bar Journal, in the issue immediately following the board
meeting at which the legislative position(s) were adopted.
Section 2. Objection
to Advance Reduction.
A. Any member may, within 45 days of the date of
publication of a notice in the California Bar Journal, file with the Acting Executive
Director of the State Bar a written objection to the designation of a State Bar activity
or legislative position as chargeable. The written objection must be made individually and
separately, shall state the challengers name, address, telephone number, bar number,
and the activity or legislative position that is the subject of the objection. The
objection shall be served on the Acting Executive Director at the main office of the State
Bar at 180 Howard Street, San Francisco, California. Objectors must make full payment of
their annual membership fee less only the advance reduction. Written objections must be
postmarked in an envelope correctly addressed to the Acting Executive Director or
personally delivered to the State Bars main office on or before the 45th day
following the publication date of the California Bar Journal. Failure to timely comply
with the requirements of this section shall constitute waiver of any right to object.
Failure to make full payment of membership fees minus only the advance reduction may
subject the member to a late payment assessment and other penalties provided for in
section 8, article I, of these rules and in §6143 of the Business and Professions Code.
B. After a written objection has been timely
received, the State Bar shall promptly place the amount of the objectors membership
fee in escrow in an interest bearing account pending determination of the objection. The
escrow amount need not include the portion of the membership fee for those activities that
no dissenter could reasonably challenge. If the State Bar in its discretion elects to
place less than 100 percent of the challenged amount in escrow, such escrow amount shall
be independently audited. The provisions of this section do not apply to requests for
refund under section 3.
C. At its next regularly scheduled meeting following
the applicable deadline for timely receipt of an objection or as soon thereafter as the
objection may be considered, the Board shall decide whether to remit part or all of the
escrow amount to the objector and/or to refer the objection to arbitration.
The Board may determine whether to consolidate challenges.
D. After any decision to arbitrate, the objector(s)
and the State Bar may mutually agree to an impartial arbitrator. In consolidated challenges, an arbitrator may be
selected by agreement between the State Bar and at least 75 percent of the objectors. If no agreement can be reached on an arbitrator
within 30 days following the decision to arbitrate, the American Arbitration Association
shall appoint an arbitrator. The State Bar
may extend such time to reach an agreement, not to exceed an additional 30 days.
E. Arbitrations shall be heard at the San Francisco
or Los Angeles office of the State Bar, as determined by the State Bar.
F. The issue for arbitration shall be whether the
challenged activity or legislative position is germane under the standard set forth by the
United States Supreme Court in Keller v. State Bar 496 U.S. 1 (1990).
G. The arbitration shall be expeditious, fair, and
informal in nature. The State Bar and
objector(s) may offer such evidence as they desire and shall produce additional evidence
as the arbitrator may deem necessary to an understanding and determination of the issue.
The arbitrator shall judge the relevance and materiality of evidence offered, and
conformity to the rules of evidence shall not be necessary.
The arbitrator may receive and consider evidence of witnesses by declaration
H. The arbitrator shall issue a final written
decision no later than 30 days after submission of the final post-arbitration briefs. If
the decision of the arbitrator concludes that the challenged expenses were improperly
charged to the annual membership fee, the decision shall include an award for refund of
the pro rata portion of the membership fee with the interest earned as of the date the
objectors membership fees were received by the State Bar.
Section 3. Public Agency Refund Procedure
A. Public agencies which use public funds to pay the
annual membership fee of their public employees will be treated by the State Bar as
generally objecting to those activities as to which the issue of chargeability may be
reasonably disputed. No public agency may
assert or seek to represent individual objections or the viewpoints of individual
employees without the written consent of the individual public employee.
B. In the event an award is made to individual
objectors as provided in section 2, such public agencies will be entitled upon timely
demand, to a refund. The amount of the refund
shall be the aggregate of all awards plus interest that would have been payable to the
public employees on whose behalf the public agency paid membership fees had the public
employees filed individual challenges.
C. The State Bar shall maintain a list of the names
and addresses of all public agencies known to the State Bar, which list shall be subject
to public inspection upon reasonable notice. Upon
written request, public agencies shall be included in the list maintained by the State
Bar. If an award is made to individual
objectors, the State Bar shall notify all listed public agencies of their entitlement to
demand a refund. Such notice shall be in
writing and shall be given within thirty (30) days of the award to the individual
D. A refund demanded by a public agency shall be in
writing and shall include: (1) the name and address of the public agency making the demand
and entitled to the refund; (2) a statement that the public agency is making a refund
demand pursuant to this section; and (3) a list of the names and bar numbers of all public
employees whose bar fees the public agency paid with public funds. A refund demand must be served on the Acting
Executive Director at the main office of the State Bar in San Francisco, California,
within sixty (60) days of the date of service of written notice by the State Bar of the
public agencys entitlement to demand a refund.
E. The provisions of this section do not relieve the
public employee as a member of the State Bar of any obligations, penalties, or forfeitures
under the law if the public agency fails to timely pay the public employees
membership fee, take the advance deduction or request a public agency refund.