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| James
E. Herman |
According to Tony Girling, the former president
of the Law Society of England, "The law firm of the future will
consist of a computer, a lawyer and a dog. The computer is there to do
the legal work. The dog
is there to keep the lawyer away from the computer. The lawyer is
there to feed the dog."
This is a future we need to avoid - the
ultimate unauthorized practice of law.
Spotting the trends and influences affecting the
members of our profession is on the agenda of the board of governors
as part of our recently adopted annual planning cycle and strategic
plan.
So why should you as a member care about an
annual planning cycle and the strategic plan?
Because the budget - how your dues will get
spent - is part of the planning cycle. One of the most common
complaints I hear from you, the members, is over the amount of bar
dues you have to pay coupled with the feeling you are not getting much
for your money except a magazine. Er, actually, you don't even get a
magazine - The Daily Journal Corporation publishes the slick
magazine as California Lawyer. The State Bar publishes the California
Bar Journal in newsprint tabloid form.
As many of you may not know, most of your dues
dollar is committed to programs unrelated to member services. For
example, of your $385 in dues, $306 are committed to the operation of
the discipline system (admissions is funded entirely out of
application fees), $35 are committed to the Client Security Fund and
$10 are mandated by the legislature to support the Attorney Diversion
and Assistance Program. All other State Bar operations including
member services are paid out of the remaining $34 of your dues
payment. And you actually get a lot for this 34 bucks: See member
benefits on the website at calbar.org for the details. Part of our job
is to increase member services for the 34 bucks.
Budgeting, as part of our annual planning
process, asks a few simple questions about both existing and proposed
programs. Does the program promote the State Bar's mission to
"improve our justice system and insure a free and just society under
the law," keeping in mind that spending of members' mandatory dues
is narrowly limited by the legislature and court opinions? What are
the fiscal and resources impacts of any program? What other programs
will be replaced by any new program?
We see this approach as responsible stewardship
of your dues dollars. The goal is to keep your dues as low as
possible.
This does not mean that your dues will not
increase. The bar, just as the rest of the public and private sector,
is vulnerable to economic downturn, increased costs, mandated program
increases and additions as well as general cost of living increases.
Last year, for example, we passed on a one-time savings from unfilled
staff positions to the membership, thereby reducing dues by $45. This
year, because we are fully staffed, we raised the dues back up again,
but we are still below the legislative ceiling set several years ago.
It does mean your dues dollars will not be spent
on a whim of the board of governors or bar staff.
And trends analysis as part of strategic
planning? Let's talk about two trends we are looking at: changing
demographics and the practice of law by non-lawyers.
A recently completed survey by the bar shows that
although the majority of the population is of color and female, the
State Bar membership is majority non-Latino white male. What effect
does this dissonance have on access and quality of justice? Better
yet, what does it mean to you as a member, irrespective of your
personal demographics, if the majority of your clients is non-white or
female? How will it affect your marketing strategies? How will it
affect your bottom line? These demographic changes will affect the
practice of law well into this century.
Unauthorized practice of law is on every
member's radar. This is not because of loss of business - most
cases handled by non-lawyer practitioners are too small for lawyers to
be interested in - but because consumers are not being well served.
We all have horror stories of the document service client who files a
bankruptcy petition to stop an unlawful detainer.
Interestingly, however, the problem is not
unauthorized practice but authorized practice by non- lawyers.
Document and immigration services are statutorily authorized. Trust
mills are tolerated. Non-lawyers (including paralegals, defrocked
stock brokers and disbarred lawyers) are tacitly allowed to represent
customers in NASD arbitrations. And what about title companies, escrow
companies and real estate agents? All are lawyer practice areas east
of the Mississippi but not in California. CPAs may practice before the
US Tax Court and they otherwise practice law on a daily basis. H&R
Block? A document service also dispensing complex tax planning advice
all over the country. Multidisciplinary practice? It's already here
on a de facto basis. Just check any of the Big Five (soon to be Big
Four) accounting firms. Multijurisdictional practice? The Supreme
Court has recently authorized a minor expansion of certification for
lawyers not licensed in California practicing as legal services
lawyers or general counsel. But our neighbors in Oregon, Washington,
Utah, Nevada and Idaho are working on a multi-state bar license, which
will substantially open market areas for their lawyers.
Ironically, the only statutory definition of the
practice of law in California is found not in a statute relating to
lawyers but in a statute defining independent paralegals.
As lawyers we need to be at the table to address
these pressures on the profession. And in another way, we need to get
serious about access to justice. Many of these non-lawyer
practitioners thrive because people are not otherwise able to obtain
legal services. Fortunately, family court mediators and
self-represented litigant programs as well as legal aid and pro bono
assistance provide some relief. But as lawyers, we need to look both
at protecting the consumer and providing access.
At our annual planning meeting May 3-4, we will
be hearing from members and constituent groups on these and many other
issues.
In the meantime, keep your computer but sell that
dog!
Santa Barbara attorney James E. Herman represents District 6 on the
State Bar Board of Governors.
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