|some funding for the bar, "the court will entertain a request to
terminate these proceedings," the order said.
The bar was deferential to both
Wilson and the legislature in its request, but said the lack of funding "presents the
real likelihood of long-term damage and lasting impairment of the bar's ability to carry
out its judicial functions as the court's administrative arm and to protect the
In its order, the court said, "There may be a substantial risk to the public
resulting from the absence of an adequately functioning attorney discipline system."
It asked for comment and briefing, supported by points and authorities, on three
What authority does the Supreme Court have to
impose a fee requirement limited to discipline, and what weight should be given to the
numerous out-of-state decisions concerning that authority cited in the bar's petition.
If the court has the authority to impose a fee to
fund the discipline system, should it exercise that authority. If so, what should the fee
Are there alternatives to a license fee that would
provide public protection, and if so, what other funds are available.
Marshall acknowledged that the court's order is unusual, but said it "makes
eminent sense" to seek comments from a wide segment of the legal community.
"The court recognizes it's a critical issue, a statewide issue, and it impacts a
variety of different segments of the community," he said. "The bar will have a
lot to say."
Sharon Browne, an attorney with the conservative Pacific Legal Foundation of
Sacramento, which has fought the bar in court, said PLF is opposed to any court
"We will certainly be pointing out to the court that it has no authority to set,
collect or appropriate funds," Browne said. "That is clearly a legislative
function. We would urge the court not to get involved in a constitutional dispute."
PLF and Republican lawmakers who opposed legislation in the last session to set bar
dues have sent letters to the Supreme Court characterizing the bar's petition as an
attempt to thwart the legislature.
In its petition, the bar said the stopgap funding would be used to recall laid-off
staff or hire new employees "necessary to maintain those essential functions that
will prevent further long-term harm to the discipline function."
Because of the likelihood that legislation will not permit the bar to collect member
dues, beyond the statutorily allowed $77, until the year 2000, a special assessment might
be used to defray expenses for as long as 15 months.
It would be used to partially fund some of the most essential disciplinary functions,
including complaint intake and enforcement, the State Bar Court, fee arbitration, the
ethics hotline, membership records and general counsel staff necessary to support those
At the time of the staff reduction, 4,459 open investigations were suspended. Since
then, the bar has received 2,097 new written complaints, bringing the backlog of
unresolved investigations to 6,556. That number grows by about 150 each week, according to
In addition to the inability to process complaints, the State Bar Court abated more
than 250 pending cases in June, of which 187 remain before the hearing department and 36
in the review department.
Normally, between 700 and 800 cases are pending in the hearing department, and another
60 are before review judges.
In his Sept. 28 letter, Wilson said Supreme Court assumption of control over the
attorney discipline system "will protect the public while giving the legislature time
to continue to consider the issues of governance, the scope of legitimate functions, and
the membership fee level of the State Bar."
He warned that the court's action should not usurp the legislative process and
expressed hope that lawmakers can resolve their impasse over the bar as early as December,
when the legislature begins a new session.
The bar's petition, Wilson said, places the court in the position of deciding
"whether to take the unprecedented step of imposing a membership fee that the
legislature had declined to enact, thereby intruding on the legislative process and
raising serious separation of powers questions."
The court has held what amounts to public hearings twice before, once in the 1970s, and
again in the 1980s. Both times it considered the issue of reapportionment.
Earlier request rejected
In June, it rejected a bar petition asking for an emergency order that California
attorneys pay $287 in dues this year. George offered to serve as a mediator among the
parties, and although then-bar president Marc Adelman quickly accepted the offer, it was
rejected by Wilson and key legislators.
In remarks at the bar's annual meeting in Monterey, Chief Justice George did not
comment on either the governor's or the bar's requests.
He urged local bar associations and individual lawyers to step in to fill the gap left
by the discipline shutdown, including help with fee arbitration, serving as probation
monitors for disciplined lawyers, establishing attorney-client grievance panels and local
ethics hotlines, and handling practices left in limbo by an attorney's death, incapacity
"The crisis in bar discipline has had a detrimental impact on the protection of
the public," George said. "It is incumbent on the legal system to ensure that
clients are protected from those who might abuse their trust."
George has said in the past that he does not favor Supreme Court assumption of the
discipline system, which had a $41 million budget when operated by the bar.
The governor did not specify how discipline would be funded were the court to assume