 That great
philosopher Clint Eastwood explained it all when he said: “A man’s got to know
his limits.” That sage advice applies to the State Bar. The State Bar has two
well-defined roles (ensuring competence and enforcing discipline) and one vaguely defined
role (improving the administration of justice). The most vociferous critics of the State
Bar rarely fault its performance in the core areas of competence and discipline. Where
their attacks have focused has been in the area of the vaguely defined obligation of the
State Bar to work to improve the administration of justice. Without agreeing with these
critics, my view is that the State Bar has enough to do protecting the core values of the
profession. The board should avoid projects proposed by those who seek to have the State
Bar press its limits. Given some steps recently taken by the State Bar, there is hope that
it has learned to respect its limits.
The State Bar is established by the California Constitution and by
statute for the purpose of establishing minimum standards for the practice of law and
operating the discipline system. These two tasks are of critical importance to our
country. America is currently enjoying unparalleled prosperity. This prosperity exists
because our society encourages innovators and entrepreneurs. We encourage innovators by
rewarding them with protection for their discoveries. The way we offer this protection is
through the existence of laws that protect contract rights, intellectual property rights
and human rights. One need only travel a short way from the shores of our nation to find
countries with great natural resources that do not have laws that effectively encourage
entrepreneurs. In his recent book, The
Mystery of Capital, Hernando de Soto demonstrates how the absence of legal rights stifles
the ability of those who live in undeveloped countries to use even the limited capital
resource available to them. It is the Rule of Law, then, that is at the foundation of the
prosperity we currently enjoy.
In order to have a functioning Rule of Law, there must be technicians
to resolve disputes, serve as advocates and counselors. One need only visit a nation that
is not governed by a Rule of Law and that does not have a tradition of legal technicians
to realize their economy is rife with cronyism and their civil liberties are limited. In
our society the role of legal technician is performed by attorneys who mediate between the
citizens and the law, serving as judges, trial lawyers and advisors. Accordingly, in order
for there to be a Rule of Law that will make prosperity possible, a society needs a
flourishing legal profession.
If one reflects about what it takes to create a flourishing legal
profession, one quickly comes to recognize that society must protect the two core values
of the profession: competence and loyalty. One cannot perform the role of legal technician
if one is not competent. This competence is gained by being schooled in the law.
Similarly, a client will not entrust confidences to an advisor unless the client has
confidence in the loyalty of the advisor. Attorneys can provide clients assurances that
they will remain loyal to their clients because of the profession’s rules of ethics
and the discipline system.
One of the main ways American society has established to ensure the
achievement of the goal of providing clients with advisors who are competent and who will
remain loyal to the clients has been to establish minimum standards for attorney
competence and loyalty. With respect to competence, we require attorneys to demonstrate
minimal competence by passing a bar exam. With respect to loyalty, we have laws and court
decisions that define the minimum ethical standards that one must accept in order to hold
oneself out as an attorney and a discipline system to enforce obedience of these ethical
rules.
Under the California Constitution, the State Bar has been charged
with the responsibility of administering the attorney competence and loyalty programs. The
State Bar administers the bar exam and it sets up and enforces the attorney specialization
programs. The State Bar is also charged with the duty of drafting ethical rules for
submittal to the Supreme Court, drafting ethical opinions and operating the discipline
system. These programs that are focused on attorney competence and discipline are at the
center of the mission of the State Bar. Critics of the State Bar may fault some way the
bar exam is administered or raise questions about a proposed new ethical rule, but almost
all agree that it is appropriate that the State Bar run these programs.
The State Bar has a third responsibility, defined by statute, to take
steps to improve the administration of justice. It has been in this area of activity that
the bar has run into the most criticism. Some view the charge to “improve the
administration of justice” as a grant to the State Bar to take on any and all of what
they see as society’s ills. With a bit of a stretch, everything from gun control to
abortion to Medicare can be cast as a “legal” issue on which attorney should
weigh in. Thus, for example, one can say that attorneys have a stake in the gun control
issue because, on the one hand, family law attorneys are particularly at risk for being
shot by crazed spouses or, on the other hand, attorneys are best suited to explain the
meaning of the Sixth Amendment. Others argue that what is good for attorneys is good for
the “administration of justice” and, so the reason goes, this means that the
State Bar should act as a trade association, lobbying the legislature for whatever benefit
a majority of the profession thinks would be desirable.
It has been these efforts at the fringes of the State Bar’s
mission that have led to so much controversy. I do not agree with the views of many of the
bar’s critics about the particulars of a given controversy.
For example, I have long supported the Conference of Delegates, which
has been unfairly criticized while receiving no credit for the excellent work it has done.
But, having recognized the contributions of the conference, the State Bar must not let the
work of the conference distract it from its core duties.
Having noted that there are limits, this does not mean that the State
Bar has no duty to work to “improve the administration of justice.” But when it
ventures into this area, the State Bar should have a broad consensus of support and it
works best when the State Bar works with partners. Consider two examples: access and
diversity.
There are no two better examples of areas where the State Bar has a
vital role to play in improving the administration of justice. But, before the State Bar
can act, it must develop a broad consensus that supports the direction it wants to go.
And, in order to be most effective, the State Bar should seek out
partners such as the Judicial Council or the legislature in order to be sure that while
pursuing these worthy goals it does not exceeds it limits.
There is reason to believe that the State Bar has learned this lesson
well. The board recently adopted a rule requiring a two-thirds vote of the board before
the bar will take positions on legislation. The Confer-ence of Delegates and the sections
have just completed their first self-supporting year. These are all good signs that the
new State Bar has learned to respect its limits.
Palmer Madden can be reached at statebarpresident@calbar.org.
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