The California Bar Journal

POINT/COUNTERPOINT

Should members vote in the plebiscite to abolish the State Bar?

by Peter Keane

Peter G. Keane is a past president of the Bar Association of San Francisco and a former member of the Board of Governors of the State Bar of California. He is chairperson of The Lawyers' Committee for a "Yes" Vote.

Longtime bar opponent says it's time for lawyers to make history by closing down the mandatory bar

by Patricia Phillips

Patricia Phillips, a partner with Morrison & Foerster in Los Angeles, is a former member of the State Bar Board of Governors and chaired the Committee on the Future of the Legal Profession and the State Bar. She is one of three co-chairs of the Committee to Save the Unified Bar.

Veteran bar proponent says abolition would lead to lawyers having no hand in governing themselves

YES

California's lawyers will have an historic opportunity to benefit ourselves and to improve the legal profession by casting a "yes" vote in the upcoming May plebiscite on the State Bar.

Eighteen states have voluntary bar associations. These include New York, Pennsylvania, Ohio, Illinois and New Jersey. None of these states are considered backwaters nor are their legal professions in any way inferior to other states.

On the contrary, they all have sophisticated, vibrant and dynamic legal communities. These states also have two very distinct and appealing characteristics which California does not have. The dues which lawyers pay are a lot cheaper, like $175 per year in New Jersey vs. $478 per year in California.

And attorneys in each of those states have a statewide professional association which vigorously advocates for the interests of its lawyer members.

Monitoring bureaucracy

The sole reason for the comparatively high cost of dues in California is wanton inefficiency and gross mismanagement of State Bar finances by its unchecked bureaucracy.

Some examples are illustrative:

1. From October 1990 through July 1994, the bar leased a 13,000-square-foot suite of offices on the 26th floor at 100 Van Ness Avenue in San Francisco for a total cost of $850,000. The space remained empty for the entire period of the lease, and even though this was some of the most expensive office space in the city, the bar made no attempt to sublease it or to unload it.

2. The Alarcon Commission's report on the bar's disciplinary system found a pattern of waste, overspending, lack of economy of scale and staff indifference to the abuses which were so appalling that Federal District Judge Arthur Alarcon said these problems could only be forced to be redressed by measures such as an immediate reduction of $100 in every lawyer's dues.

Typical of the arrogant bureaucratic practices identified by the Alarcon Commission was that of a high level supervisor whose entire staff was in Los Angeles. He was allowed to live in San Francisco and the bar spent $24,000 per year in travel expenses to fly him back and forth to his job. The frequent flier award windfalls went to him.

3. Most incredible of all, the bar has agreed to pay $22.5 million of our dues money to purchase a new building in San Francisco. This is virtually on the heels of the bar moving its Los Angeles operation into a multi-floor, opulent set of quarters in an expensive downtown L.A. building.

Why two cities?

If one does some investigation of why, in this era of telecommunications, faxes and modems, there needs to be two geographically separate and lavish headquarters of the State Bar of California in two different cities, the only reason that surfaces is that the top level bureaucracy likes living in San Francisco.

As a result, just as with that $24,000-per-year commuter identified in the Alarcon Commission report, the high level staffers of the bar spend much of their time shuttling back and forth between San Francisco and Los Angeles and amassing free European and around-the-world vacation trips with their frequent flier boondoggles.

Now doesn't all of this make you feel good about how your dues are spent?

Let's turn now to the most important thing we do not get for all of those dues we pay. The legal profession in California does not have a statewide organization to speak out on behalf of lawyers' needs and to lobby for lawyers' interests.

The State Bar, as an organization, is a timid, bloodless entity which is constantly looking over its shoulder in terror at the legislature. It cannot and it does not take stands on behalf of the needs and professional interests of its members except in the most innocuous, neutral matters.

Anything that hints of controversy, anything that is important, anything that is of substance, the bar shies away from out of fear of antagonizing some element which may then react and endanger the bar's entrenched bureaucratic fiefdom /and sinecures.

As a result, we in the legal profession in California have no statewide voice to speak out for us. If we were California barbers, plumbers or podiatrists, we would have a statewide association that represents us. It is a strange and absurd irony that we lawyers, the most politically savvy, highly educated and articulate group in society, have allowed ourselves to be denied the protection and the benefits which come from having a statewide organization.

The State Bar of California, in its present form, is an anarchistic sham held together by the thin glue of fictions. The main fiction is that by going to a voluntary bar association, we -- the lawyers -- will no longer govern ourselves. The fact is that we don't govern ourselves now. In reality, the State Bar apparatus that regulates us and does things to us, not for us, is a staff of bureaucrats who themselves are free from any responsible oversight by anybody.

Going voluntary

With a voluntary bar association, we will have the best of both possible worlds. We will have a regulatory agency under the Supreme Court of California which governs admissions and discipline. That regulatory agency will itself be regulated in its finances and in its operations by the established checks and balances of state government.

And in addition, we will have a vigorous, dynamic, statewide professional association that can both represent our interests and speak out honestly and directly on important issues for society at large.

Vote "yes" in the May plebiscite.

Lawyers who care about the future of the legal profession and their role in it should vote "no" on the SB 60 State Bar plebiscite. A contrary vote will lead to the abolition of the unified bar by starting the process to remove participation in lawyer governance and regulation from lawyers and put it in the hands of politicians.

This would be a major blow to the profession. Responsibility for the discipline of lawyers would shift from the bar's current judicial status under the Supreme Court's supervision to a politically appointed agency designed and controlled by the legislature. While the current bar structure is not perfect, for lawyers to believe that their lives and livelihood will be better if we dismantle the bar -- thus divesting ourselves of our current rights and obligations for self-regulation -- is pure sophistry.

Discussions with thousands of our colleagues involved in the Coalition to Save the Unified Bar -- the volunteer grassroots group urging a no vote in the plebiscite -- tell us that the members of the State Bar of California are not willing to abolish the current organization for an unknown entity with ties to the political whims of the state legislature. The fact is that lawyers recognize that SB 60 is just another attack on the profession as a whole. They realize that a strong yes vote will leave lawyers with no protection whatsoever to meet the attacks to which we have been subjected by the legislature.

Who is behind the plebiscite? First, the author of the bill is Sen. Quentin Kopp, a frequent critic of attorneys. He is the legislator who authored legislation that produced the notorious trial publicity ethics rule curbing lawyer free speech that the majority of lawyers thought was unwise overkill. Sen. Kopp has a bill waiting in the wings to abolish the State Bar Act, should the yes forces prevail in this plebiscite.

Aiding him is the lawyer group headed by Peter Keane. Mr. Keane was instrumental in proposing the 1994 ballot proposition that politicized the Commission on Judicial Performance and put judicial discipline in the hands of consumers.

Other plebiscite supporters include a minority group of members of the Commission on the Future of the Legal Profession and the State Bar, who, like Mr. Keane, advocate abolition of the bar. They suggested that the future of lawyers include mandating a bar exam for every lawyer every five years, random audits of law office accounts, mandatory malpractice insurance and mandatory pro bono obligations for each lawyer. Basically, these are anti-lawyer sentiments and anti-lawyer proponents.

Analyzing the cost

The cost of self-governance is $478 per year, less than $40 per month. The supporters of the SB 60 plebiscite cannot tell us that the costs for each lawyer would be less than that which we now pay because they have no idea, no plan, for a new structure. They therefore cannot estimate the new cost.

Moreover, since when has anyone had confidence that Sacramento can do things better, cheaper and faster? Lawyers would still pay the cost of regulation, as do doctors, architects, contractors, dentists and other professionals. Our discipline system costs more than theirs because there are more of us and more complaints filed against us. Those other professions have notoriously ineffectual discipline systems while we can point with some pride to our discipline system as a model in the nation. With our greater visibility and the public's more visceral reaction to us, there is no point in dreaming that complaints will lessen or that our cost will miraculously go down if we simply change the form of governance over us. There's a big difference in volume and demand: that's the real reason for the higher fees we pay.

Now the Supreme Court is the final arbiter of lawyer discipline. We should not allow circumstances to be set into motion that will change that status in favor of political appointees.

Dedication to the profession

In recent surveys and focus groups, California lawyers state that assuring ethical conduct and enforcing standards of professional practice are the principal jobs of the unified State Bar. The State Bar has demonstrated its dedication to these tasks. Realistically, what entity is it that will take on these critical and difficult tasks in the event that the unified bar is abolished?

After all, it is the current State Bar which has promoted the ethics hotline, ethics school for minor disciplinary offenses, revisions to the Rules of Professional Conduct, implementing a more consistent and effective State Bar Court of full-time jurists, and incorporating management techniques to increase productivity of trial and investigations units. In addition, the State Bar pioneered the IOLTA program, runs the JNE Commission, and recently initiated the Law Office Management Assistance (LOMA) program designed to aid solo and small firm practitioners.

It is also the current State Bar which asked a distinguished outside panel of lawyers, judges and laypersons to evaluate the discipline system's fairness, quality, effectiveness and cost-efficiency. The bar's system won high praise for its fairness, effectiveness and quality, and nearly all recommendations relating to cost savings have been considered and implemented over the past two years.

Let's be first fiddle

The proponents of the SB 60 plebiscite say that a statewide voluntary bar association can be set up to provide all the non-regulatory services which the State Bar presently performs. Why have not the proponents or, indeed, anyone attempted to establish a voluntary statewide bar association before now to determine whether it would have the strength to stand alone without the unified bar?

The fact is that in the minority of states which do not have a unified bar, the experience is that the statewide voluntary bar plays second fiddle in influence, credibility and budget to the state's largest urban bar association.

There are sound reasons why the California Judges Association, the Council of Section Chairs (representing the leaders of the 17 State Bar substantive law sections), the Conference of Delegates and dozens of local, county and specialty bar organizations as well as individual lawyers across the state all endorse the unified bar and urge a no vote. These entities and lawyers recognize the contributions the State Bar makes to help the profession discharge its regulatory functions of assuring ethical conduct and public protection, while advancing professional goals and collective responsibilities to the administration of justice.

The Commission on the Future of the Legal Profession and the State Bar studied ways to improve the current structure and made a myriad of recommendations which were aimed at making the administration of the State Bar more accountable and the Board of Governors more representative. Many of the recommendations of the Futures Commission are in the process of implementation.

One thing we can be sure of is that if the State Bar is abolished, the remainder of those recommendations, which were specifically directed to changes in structure, will not be aired in the legal community and will not see the light of day.

As one of our fellow lawyers said recently, "The State Bar is not perfect, but it's better than any government agency. Government-run agencies are more inefficient and wasteful."

We need to support our profession against its attackers and preserve the unified bar. That's the only way we can guarantee that we have input and participation rights in our governance and regulation.

Vote "no" on the State Bar plebiscite!