California Bar Journal
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Get involved in the art of legislation
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President, State Bar of California
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Karen NobumotoToo often, we lawyers have a tendency to focus our attention on case law and the courts, to the exclusion of all else. This is a big mistake, because there is another agency which can and does have a frequent and profound impact on our professional lives: The legislature.

Each year, the California legislature considers literally thousands of proposed changes in our statutory law. In 2001, for example, 3,358 regular and special session bills were introduced into the legislature - in addition to a few hundred assorted proposed constitutional amendments and resolutions. Of these measures, 966 were signed into law and 170 were vetoed by the governor.

Granted, many of the changes that were enacted are technical and non-substantive, and many more have nothing to do with our individual areas of practice. Yet many of these changes do affect us, either specifically as practitioners, generally as lawyers, or even more generally as citizens of this state. (See box below.)

Because these laws - and proposed laws - do have the potential to affect us profoundly in both our professional and private lives, it is incumbent upon us to pay attention to what the legislature and governor are doing and to provide input where appropriate. Discovering after the fact that a major change in law has been enacted and muttering, "How did that become law?" just doesn't cut it.

Fortunately, there are no obvious horror stories to recount about bad bills affecting lawyers that were signed into law this year.

From the standpoint of the State Bar, 2001 was an excellent year, producing a two-year fee bill, the enactment of a new diversion and assistance program for attorneys with substance abuse problems, and a tough new law against the unauthorized practice of law, among several others. 

Yet there are plenty of examples of bills that might have become law to make the point - bills whose failure could be regarded as either a barely avoided disaster or a wonderful opportunity missed, depending upon one's perspective.

A case in point is SB 11 by Sen. Martha Escutia, which would have outlawed secret settlement agreements in certain personal injury cases, and which stalled on the Assembly floor on the final night of the legislative session. Like it or hate it, SB 11 clearly would have had a profound impact on the practice of many lawyers had it been enacted. It is one of many bills of which we, as lawyers, should be aware.

Because the State Bar's primary mission, as articulated by the U.S. Supreme Court, is the regulation of the legal profession and the improvement of legal services for the people of California, the bar limits its own legislative activities to bills directly impacting one or both of those areas.

However, the bar does offer opportunities for lawyers with professional expertise and an interest in legislation to play an important role in the development of California statutory law, as my colleague and fellow board member Nancy Zamora will share with you.

A place for lawyers to put their expertise to work
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Nancy ZamoraIt has been said that politics is the art of the doable. Legislation has been described as a little like sausage-making. The reality is that crafting legislation is a painstaking process that requires a blend of hard work, persistence, expertise, cooperation and vision.

Fortunately, California's legislature is among the best in the nation. As a result, the legislative process in our state is deliberate and effective. Every year, California's legislators work without much fanfare to enact laws that affect virtually every aspect of our lives. It is a tremendous load and the stakes have never been higher.

For this reason, it is all the more important to establish a presence in our State Capitol when it comes to matters that affect the practice of law and the delivery of legal services to the public. Here, again, we are fortunate. Today, more than ever, the State Bar has developed the focus and mission to accomplish this critical task.

For example, the State Bar has initiated a program that recruits lawyers with extensive practical expertise in discrete areas of substantive law for the purpose of assisting legislative staff in the drafting of legislation.

We have accomplished this through the State Bar's voluntarily funded sections and the bar's standing committees. In addition, many sections and committees have developed liaison relationships with staff working on corresponding legislative committees.

The State Bar has not added staff or organizational structure for this program, but we have made the most of our existing resources and achieved some impressive results. Already, sections, committees and legislative staff have responded positively to our early efforts. In 2001 alone, this cooperative effort produced several bills relating to conservatorships, spousal support, and paralegals.

In one noteworthy example, the State Bar worked with Assemblyman Darrell Steinberg to craft an amendment to the Rules of Professional Conduct as an alternative to AB 363, legislation by Assembly-man Steinberg concerned with the problem of ethical conflicts that could be encountered by public agency lawyers. Today, a draft amendment to Rule of Professional Conduct 3-600 is out for public comment.

The idea behind this program is to provide technical, non-ideological input by members of the bar to legislative staff involved in the guts of legislative drafting. So far, the results have been pretty good, thanks to the hard work of our sections, our committees, and our staff. My hope is that these early successes will encourage other lawyers to get involved with this valuable program.