currently comprises nearly 80 percent of the
bar's annual budget.
In a report released in late August, the
nine-member ABA panel cited two major reasons such a shift should take
place: The control of discipline by elected bar officials creates an
appearance of conflict of interest, which undermines public
confidence; and because the bar is at the mercy of legislators and the
governor for funding, the court's inherent authority over discipline
also is undermined.
"The counter-argument is that having the
Supreme Court assume responsibility for the investigation and
prosecution of matters it ultimately will adjudicate presents another
philosophical problem," said Judy Johnson, the State Bar's
The panel was quick to point out that the bar has
"engaged in Herculean efforts" to rebuild its disciplinary system,
essentially shut down during the 1998 dues crisis, but it felt that
handing it over to the Supreme Court would ensure more stable funding.
Johnson said the report is the second such
acknowledgment of the bar's efforts - this year's state
auditor's report said much the same thing. The ABA panel was invited
to investigate the discipline system by both the State Bar and the
Supreme Court, and Johnson said its conclusion is more a reflection of
its own value system than a criticism of California's approach.
Roughly half of states place attorney discipline
in the hands of other agencies rather than house the systems at state
bars, according to Fran Bassios, special assistant to Johnson.
California's discipline system is funded by
State Bar dues, approved every one or two years by the legislature and
signed by the governor. But a changeover would not mean lawyers would
get a break in dues - they would just be sending their checks
"The bottom line in terms of who pays for the
discipline, wherever the system is housed, is lawyers - not
taxpayers - are going to pay for it," Johnson said.
Johnson said that even if discipline was taken
from the bar's purview, it would not be the "death knell" of the
176,000-member organization. The bar would retain several of its
functions including program development, maintaining an ethics hotline
and other duties designed to aid attorneys and enhance the profession.
the recommendation does leave some question as to the bar's identity
- if it gave up keeping its wayward members in check, what would the
"A collegiate association, like a fraternity or
sorority," answered Mike Nisperos, the bar's chief trial counsel.
The ABA report also recommended that the position
of chief trial counsel, Nisperos' job, be appointed by the Supreme
Court, saying that control over both prosecution and adjudication
would "promote public confidence" by underlining the agency's
independence from the State Bar.
"It's a political decision - I will leave
that to the powers that be," Nisperos said of the ABA's proposals.
"The office is one that can function well in
either stead, and it's functioning well where it is. (So) if it
ain't broke, don't fix it."
The Supreme Court has so far refrained from
commenting on the recommendations. Its staff released a general
statement in September that "the court is not making any
prejudgments on any particular issues discussed in the report."