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.”
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