State Bar moves to enforce rule requiring mediators to maintain active practice status

By Nancy McCarthy
Staff Writer

Santa Cruz mediator Chip Rose keeps his law license active because some of his work entails tasks that require him to wear an attorney hat. But he doesn’t much like the idea that if one is a mediator who happens to be an attorney, active status is a necessity.

“The art of mediating has nothing to do with the law,” he says.

Many retired judges, although no one seems to have exact figures, who make their living as arbitrators and mediators do not have an active license and the professional organizations that represent them are considering the question of just what their status should be.

State Bar officials want to take a stand and next month will ask the board of governors to begin enforcing a longtime policy that members who perform private judging or other alternative dispute resolution neutral services must maintain active membership status. They want to offer retired judges and lawyers who are on inactive status and earn their livelihood as arbitrators and mediators a reasonable grace period to switch their status to active — or risk suspension of their license.

“It’s about friendly persuasion,” said bar executive Starr Babcock. “We’re not trying to interrupt anyone’s practices. And of course we welcome a discussion with all the interested parties.”

The proposal was greeted with a decidedly mixed reception. “That will be highly controversial,” said Jessica Notini, a past president of ADRNC (Association for Dispute Resolution of Northern California).

“I think the bar will be placing itself in a very awkward position because the bar has not declared that arbitration and mediation are the practice of law,” said H. Jay Folberg, former dean of the University of San Francisco Law School. “They would be pursuing a remedy when there’s no real problem other than the bar’s concern for revenue.”

Bar executives insist the move is not about defining the practice of law, a concept that already has been clearly spelled out through litigation and other formal policies. Instead, they say they want to enforce Article 1, Section 2 of the Rules and Regulations of the State Bar, which prohibits inactive members from practicing law or “from occupying a position wherein he or she is called upon to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law . . .”

In simple language, says Babcock, the rule “precludes inactive members from doing arbitration or mediation.”

The bar’s initiative is, in part, the result of the shifting nature of the practice of law. More and more lawyers and retired judges have moved toward arbitration and mediation and away from the knock down-drag out of litigation.

As part of the shift, the number of inactive attorneys in California has risen steadily in the past 15 years, from 13.4 percent of the total number of lawyers in 1989 to the current 21.3 percent.

Although they pay a fee of $50 per year, compared to the active lawyer fee of $390, and are not required to complete MCLE requirements, inactive lawyers still are regulated by the bar and are subject to discipline.

“The inactive members are all part of the larger picture and they’re not bearing their share of the cost of the discipline system,” said Phyllis Culp, director of the bar’s Office of Certification. “There are groups of lawyers who are using their membership but are not contributing to funding the discipline system and are in violation of our rules.” She said no one has accurate numbers about how many will be affected by the proposal, should it be adopted.

For the retired judges, active status is accompanied by higher fees and MCLE requirements and opens the door to malpractice lawsuits. One who asked not be named said he would like to see a “retired judge/ arbitrator-mediator” category created for those who work in that area.

Sacramento Superior Court Judge Jim Mize, newly sworn in as president of the California Judges Association, said the issue is under consideration by CJA. “As I understand it,” he said, “this is not a money issue nor even an MCLE issue. But it’s a question maybe of self-perception and a recognition that as judges and as former judges, they may have a different standard that they apply to themselves.”

He added that retired judges who serve as mediators and arbitrators generally believe they are still controlled by the judicial canon of ethics and not necessarily the disciplinary rules that govern attorneys. The judicial canon “could be considered a higher standard,” Mize said.

Under the California Constitution, judges automatically revert to active status with the bar when they retire.

JAMS, which employs 89 retired judges and 27 attorneys, has taken no position on the bar’s plan as it pertains to retired judges. “We are not involved in that controversy,” said Jay Welsh, vice president and general counsel.

“We do take a position, strongly, with regard to the notion that neither mediation nor arbitration is the practice of law. You don’t have to be a lawyer to be a mediator or an arbitrator. That does not, so far as I know, in any way contravene the position of the State Bar.”

JAMS requires its lawyer employees to be active bar members, and Welsh said he does not know how many of its retired judge employees are active, but some are. Most, he said, are waiting for guidance from the CJA as to what status they should maintain.

But Welsh reiterated, “none of them practice law.”

Indeed, the phrase “practice of law” is key in the debate, with mediators and arbitrators insisting they don’t do that. Notini said lawyers routinely advise the parties in mediation and arbitration that they are not acting as lawyers and are not giving legal advice. “All those things (listed in the State Bar rule) are not supposed to be happening in mediation by the mediator. Do some cross the line? I think that probably happens.”

Notini, who said she knows “plenty of lawyers who are not maintaining their active status and who are mediating,” added that the bar’s proposal seems to suggest mediators and arbitrators need to be lawyers. “Why should that be a qualification for being a good mediator?” she asked, noting that many non-attorneys have served as excellent mediators for years. “There’s no evidence that lawyers make good mediators.”

Babcock said the bar is making no such suggestion: “We’re saying we have a rule that you cannot be around or participate in law-related work without being an active lawyer.”

Folberg said the end result of enforcing the bar’s rule may be departure from the bar by retired judges in particular.

“Think about it,” he said. “If you are a retired judge, you might ask, Do I want to become an active member of the bar and take on the burden of compliance and what that requires in the way of continuing education and specialized CLE courses and pay much higher fees, or do I want to practice mediation and arbitration as a non-lawyer, which is basically what I’ve been doing anyway.

“I think it will present a difficult choice for some retired judges or retired lawyers who are now mediating and arbitrating because they do want to be conscientious and comply with the rules, but if the rules don’t make sense, they will drive some away from any connection to the bar.”

Mize said creative minds should get to work and consider whether retired judges should be placed in a special category, whether alternative dispute resolution could be defined as work that can be done with an inactive license or whether some other compromise can be reached.

Rose, who said every lawyer he knows who acts as a mediator maintains an active license, believes retired judge/mediators should be held to the same standard as lawyer/ mediators.

“I think judges get freebies everywhere they go,” Rose said. “They damn well ought to pay (active fees). If they’re going to make lawyers pay, they should make judges pay.”