California Bar Journal
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In praise of our critics
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President, State Bar of California
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Palmer Madden, President, State Bar of CaliforniaIf there is one thing lawyers around California agree upon, it is that the State Bar can be improved. As I have traveled the state this year, time and again I have heard suggestions for improvement. I know that some State Bar denizens react defensively to these critics. My reaction is: Hurrah for our critics. We owe a debt of gratitude to those members of the profession who invest the time and effort needed to call to the attention of all of us their perception of ways to improve the State Bar. It is the critics who will point the way towards needed improvements.

Most attorneys are overwhelmed with the day-to-day task of lawyering. Not surprisingly, these hard-working souls think only rarely about the State Bar. That is as it should be. Attorneys should not have to devote time away from their clients and family to fiddle with the politics of the State Bar. That said, some attorneys are sufficiently motivated that they do take time away from other pursuits to formulate their criticism of the State Bar. Bless them for this effort.

Consider all of the changes I have seen in the last four years that have come about because of critics of the State Bar. First and foremost, under Executive Director Judy Johnson's flinty eye, the State Bar has become much more efficient. As a result of these efficiencies, this year we were able to cut our dues by 20 percent. There is no doubt in my mind that this fiscal austerity has become a focus for the staff because of concerns raised by our members. Second, the State Bar's accounting has become much more transparent, so that subsidies are no longer invisible and it is now possible to discern the cost of our programs. Third, after several years of effort, board member Jim Otto finally was able to reduce the cost the bar imposes on attorneys who file their dues late. Some of the above are big issues, some not so big, but all came about in response to comments from our members.

Now, I do not for a minute believe that critics of the State Bar are always correct. The State Bar is frequently caught in a whipsaw between competing critics, some who say it is doing too much while others say it is doing too little. For example, I frequently receive calls from consumers who are unhappy that the State Bar is not prosecuting a case against some attorney. But I also get calls from attorneys who complain that the State Bar is persecuting them for some trivial offense.

In these situations the State Bar has to hew to the rule that its first job is public protection. That said, the public is not benefitted by the State Bar putting attorneys through the wringer over trivial problems. For that reason, the bar has developed  guidelines that cut minor infractions out of our normal prosecutions. On top of that, the bar has developed a number of diversion programs and is continuing to look at new ways to avoid making mountains out of molehills - all to the good.

There are some critics who have philosophical complaints about the State Bar that strike at the heart of some issues. For example, some believe that the California Department of Consumer Affairs should handle attorney discipline. Others believe that the State Bar should be responsible for discipline and admissions, but not any of the "trade association" programs like the sections or committees. As to these critics, the trick is for the bar to listen carefully to what they say. Even if, on balance, the State Bar is not willing to adopt the recommendations of these critics, there may be a good idea within the criticism that the bar can adopt.

For example, those who objected to the State Bar's "trade association" programs, like the sections, objected in part because they did not believe it appropriate to use mandatory dues to fund these activities. Their point is that mandatory dues should only support core disciplinary and admission programs. While some say that the State Bar should do nothing outside of these core activities, they have a fallback position that any non-core activities should be self-funding. For years the bar resisted this criticism. But when forced to require self-funding of the sections and the Conference of Delegates, we have found that the sky has not fallen. In fact, self-funding has given increased vitality to both of these programs. On the board of governors, we find that self-funded sections and the conference are more assertive. Again, all to the good.

Similarly, the State Bar now has on its dues statement two lines that allow attorneys to make voluntary contributions to support (a) lobbying by the State Bar and (b) the State Bar Foundation.  Last year, 85 percent of the active attorneys in the state voluntarily contributed money to support the bar's lobbying efforts and gave $700,000 to our foundation. By focusing the bar on having to earn the support of its members, I think both of these voluntary programs will be stronger in the long run.

The bottom line is that the legal profession is indebted to the critics of the bar. Even when those in charge, on the board of governors or on the staff, do not agree with the conclusion of a given critic, we constantly must be on the lookout for ways that the thoughts of our critics can help us improve the State Bar.