Private judges must go active

Following more than two years of discussion among the State Bar, private judging organizations and the California Judges Association (CJA), retired judges who serve as private Alternative Dispute Resolution (ADR) neutrals will be required to pay active State Bar fees beginning this year.

The bar mailed a notice to more than 260 retired judges pursuing private ADR neutral work on Nov. 15, advising them of the need to move from inactive to active status and pay active fees for 2006.

JAMS, the nation’s largest private provider of private alternative dispute resolution services, will require its California members to maintain active status, and CJA President Terry B. Friedman, a Los Angeles superior court judge, has encouraged retired judges acting as private ADR neutrals to pay their 2006 active fee.

The State Bar has agreed to discuss and work with CJA on its proposal to create a special category for judges within the active status rule. In the meantime, the bar mailed 2006 fee statements to all retired judges and members on inactive status who hold themselves out as providing private ADR neutral services.

The status of retired judges has been a topic of confusion, and the rule requiring them to change that status was inconsistently enforced during the bar’s near shutdown in 1998-99, following a gubernatorial veto of its fee bill.

Judges, upon retirement, are required by the California Constitution and statute to enroll as either an active or inactive member of the bar. They have a special “judge” status while they serve in court and are not required to be bar members, although they are still carried on the Supreme Court member roll until their retirement.

Beginning in 2004, bar executives began a campaign of friendly persuasion, offering retired judges who serve as private mediators the opportunity to change their status and comply with a State Bar rule in place since 1928 that requires all members of the State Bar to be active attorneys if they are “called upon to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law.”

The State Bar rule precludes inactive members from doing private neutral ADR as inactive members. Not making such a change could lead to suspension, under bar rules.

Bar executives offered technical clarifying amendments to the rule (Article I, Section 2 of the Rules and Regulations of the State Bar), but when the proposal was sent out for public comment, the majority of those who responded incorrectly assumed that the bar was trying to define ADR as the practice of law.

“The State Bar has no authority to define the practice of law,” explained bar President Jim Heiting. “The requirement to pay active dues is not affected by the definition of the practice of law.”

The bar’s initiative is, in part, the result of the shifting nature of the practice of law. More and more lawyers and judges offer arbitration and mediation; for judges, it’s a lucrative alternative to serving on the bench.

As part of the shift, the number of inactive lawyers has risen substantially in recent years and that group now accounts for about 20 percent of the total bar membership. This year, inactive lawyers must pay a fee of $115 and are subject to bar discipline. They do not have to comply with MCLE requirements.

The bar’s efforts were met with widespread resistance, due in part to three factors that affect active lawyers: the cost of membership dues, the MCLE requirement, and a belief the bar is trying to define ADR work as the practice of law that will subject ADR neutrals to malpractice lawsuits.

CJA, in particular, opposed requiring active status for retired judges who work as ADR neutrals. In a November letter to the bar, Fried-man said CJA favored inactive status for that group. He said the work of ADR neutrals is “closely associated with judicial functions” that are “totally dissimilar to the role of an attorney or the practice of law.”

But the argument that most resonates with CJA, Friedman said, “is that, with rare exceptions, once a person is a judge, in the judge’s mind as well as that of the general public, the judge is, and always will be, a judge — neutral, not an advocate.

“It is time for the bar to recognize that retired judges are in a special category and should not be lumped in with those practicing law. It matters not whether they are serving the courts by assignment or privately. They are still acting in a judicial capacity . . . . They are not litigators who add to the caseloads of the courts. They are retired judges — in a category all their own.”

Bar executives agreed to meet with the judges over the next month to assess a CJA proposal to create a special “sub-class” of active membership for retired judges acting as private ADR neutrals. Creation of such a status requires action by the Supreme Court or the legislature.