by GEORGE M. KRAW
After years of lawsuits, public debate and internecine political warfare, its no surprise that Californias lawyers are deeply divided about the nature and purpose of the State Bar or that a substantial number want to opt out of it completely.
The 1996 plebiscite did nothing to resolve the issues that have brought the unified bar to the edge of extinction. More than anything, the plebiscite campaign and vote legitimized opposition to the unified State Bar and created a climate in which Gov. Wilson could veto the dues bill at negligible political cost.
No consensus exists as to what the role of a mandatory bar should be. One only has to read the letters and opinion articles in the California Bar Journal to see how strongly felt opposition to the bar has become and how difficult it is for the bar leadership to articulate any common professional ideology under the stress of current circumstances.
This is why Sen. Quentin Kopps, I-San Francisco, proposed legislation, SB 1371, provides the best solution. The Kopp bill would transfer the disciplinary, admissions, educational and client security fund activities of the current State Bar to the Administrative Office of the Courts (AOC). The cost of disciplinary functions would be incorporated into the Supreme Courts budget and reimbursed from licensing fees set by the Bureau of State Audits.
Co-authors of the Kopp bill are Democrat Ruben Ayala and Republicans Ray Haynes, Ross Johnson and Ken Maddy.
Kopps bill would also create a new voluntary California state lawyers association, which would not be subject to the same constitutional restrictions on political activities as the current State Bar is. It would be free to spend whatever it wanted on lobbying or similar activities. It would be free to take positions on controversial political issues without fear of retribution from the governor or the legislature, or lawsuits from members forced to pay dues to an organization whose goals they do not support.
The bar board of governors supports a competing proposal by Assemblyman Robert Hertzberg, D-Van Nuys, which would keep disciplinary authority with the current State Bar, as well as most of the functions the Kopp bill proposes to transfer to the AOC. Other activities, such as the Conference of Delegates and practice sections, would be transferred to a separately funded voluntary association.
But the Hertzberg bill creates great confusion concerning the role of the remaining mandatory portion of the State Bar. The legislation authorizes recommendations to the legislature, governor, state courts and federal government concerning the State Bar, the regulation of the legal profession, the improvement of legal services, and the administration of justice. This vague provision is an invitation to continuing disputes and litigation concerning the use of mandatory dues.
The bar is paying a price for past controversial alliances with Assembly Democrats such as Sheila Kuehl, D-Santa Monica, author of last years failed effort to raise medical malpractice damage limits supported by the board of governors. The bars lobbying efforts are the primary cause of its current woes in Sacramento, and its not clear that the Hertzberg bill would prevent similar lobbying efforts in the future.
The Hertzberg proposal also insures continued disputes about the management of the bars discipline program and how to account for its expenses. Many lawyers, most notably former State Bar Court Chief Judge Lise Pearlman, have rightly criticized the bars accounting methods and accused the bar of exaggerating discipline overhead costs. Sen. Kopp said that keeping the discipline program under the board of governors is completely unacceptable to him.
A two-thirds majority must pass the Hertzberg bill in each house in order for it to take effect this year. It will have a difficult time achieving that level of bipartisan support.
Kopps bill clearly defines the separation between regulatory and advocacy functions. Hertzbergs bill blurs them. The Hertzberg bill is an invitation to continued disputes and litigation an invitation thats bound to be accepted.
George Kraw is a lawyer in San Jose.