LEAD EDITORIAL

What has the State Bar done to me or for me lately? That question, always good fodder for letters to the editor, takes on particular significance as the plebiscite on the future of the mandatory bar nears.

Only three more issues of California Bar Journal will be published before the plebiscite goes to bar members May 1. That means only three more chances for you to sound off.

Just in case you don't know or have forgotten the precise language of the plebiscite, here it is:

"Shall the State Bar be abolished as the agency regulating lawyers in the state on behalf of the Legislature and the Supreme Court, with its regulatory functions turned over to another body or bodies and some or all of its other activities handled by a voluntary bar association or associations?"

Needless to say, we will cover this issue intensively in both our news and opinion columns. We will solicit views from bar leaders on both sides.

But the most important contributors are you, the lawyers of California. We want to know what you think about a subject of such importance. Keep your letters short and to the point. Don't pull your punches. And be sure to include your name and address. We don't print anonymous letters.

To accommodate what we hope will be an outpouring of opinion, a special plebiscite page or pages will be added to our regular letters columns between now and the time you vote.

As the official publication of the State Bar of California, we have a responsibility to provide a full and fair forum for all points of view.

We will not express an opinion of our own. But we welcome yours.

Is law less alluring?
by Joe Lipper

There is a big drop-off nationwide in the number of students wanting to become lawyers. The question is: "Why?"

Michael Dessent, dean of California Western Law School in San Diego, says law fairs, participated in by some 120 law schools in major cities, are excellent barometers. They show:

Applications to take the Law School Aptitude Test (LSAT) were down 15% from a year ago and almost 40% from 1989-90.

In the Los Angeles fair in 1995, student registrations were 2,734 compared with a peak of 3,860 in 1993.

In New York in 1995, registrants numbered 3,865 vs. a peak of 6,136 in 1989.

In Atlanta, the drop-off last year was 15% from 1994 - from 2,783 to 2,351.

Here is Dessent's take on the underlying causes:

The O. J. Simpson trial: A Cable News Network (CNN) study a couple of months ago found more than half of the college seniors surveyed had decreased respect for the law as a result of the Simpson and Menendez brothers trials. Only 7% had increased respect. However, his own law school minority affairs dean, in personal interviews, found minority students were impressed by Johnny Cochran, F. Lee Bailey, Marcia Clark and Chris Darden and want to become criminal lawyers.

Rising costs: Tuition is going up. In three years, a student can run up $92,000 in debts and then find only three-fourths of new lawyers can get decent paying jobs. At the same time, interest rates on student loans are rising and the government is pressing for faster pay-backs.

Image: TV is an important factor. Young people were impressed by "L.A. Law" and wanted to be part of that exciting life. Now the hot shows seem to be the medical ones. The profession's image is hurt by blatant advertising and publicized cases like the woman who was awarded damages when hot coffee from a fast food place spilled on her lap.

Demographics: The dip in the birth rate a generation ago resulted in a drop in the number of current college graduates. A slow rise is expected by 2000. A bigger change is in ethnicity. In 1985, 63% of students registering at the Los Angeles law fair were Caucasian. Last year, Caucasians made up 38% and non-Caucasians 62%.

"A different kind of person is coming to law school," Dessent says. He said law schools are going to have to open the eyes of those who seem to favor criminal law that there are many other legal specialties to pursue.

And law schools, he adds, have to recognize they are businesses and must do some up-to-date marketing.

"Many schools today are still in the ivory tower state depicted in the old movie, The Paper Chase," he said.

"The students don't want Socratic dialogue exclusively. They want skills that will serve them well toward making a living. They want clinics, trial practice, courses in biotech law, telecommunications, toxic torts and environmental law in addition to the basic criminal law, torts and property law."

Joe Lipper was a public member of both the State Bar Board of Governors and the Judicial Nominees Evaluation Commission.

Remembrances of a legend
by HAL NORTON

Bernie Witkin was an eminent, revered and influential legal scholar of majestic stature. The accolades and awards during his lifetime, and now, are deserved. Multitudes of lawyers and judges have benefitted from his scholarship and wisdom. So will future generations. Aside from the enormity of his writings and professional achievements, he was an intellectual and magnetic figure, endowed with myriad abilities and appealing characteristics.

When attending Bernie's law-refresher course, I was impressed with his ability to reduce bizarre and complicated bar exam questions to the basics and to present the conclusions clearly and simply. This attribute helped all of us in the test to come, and after.

Bernie and his dear and caring wife, Alba, are widely known for their philanthropy. He rarely mentioned their monetary largesse, but he did often remark that it was his obligation and wish to be available to bar organizations. It pleased him to be able to contribute freely. He spoke at bar functions throughout California, no group too small or too remote.

Bernie was a master of the podium. I recall his sure, unhurried step to the platform, the slight adjustment to the lectern or microphone, then the bold upward look to the audience, followed with a few well-chosen words, laced with wit. He was then in command. Curt Karplus, former assistant director of Continuing Education of the Bar and now with the Center for Judicial Education and Research, said: "Between 1967 and 1981, I served as the impresario for all of the lecture series Bernie gave for CEB. His trademark was to use humor to make a point. Not jokes, though he had a million of them; not in the lectures. For example, one of his favorite techniques for deflating a decision was to characterize it as, 'have opinion, need case.'"

The garden, which he delighted in showing to visitors, was dear to his heart. Winslow Small, director of the Witkin publishing operation and longtime associate, recognized Bernie's passion for it. "As we talked about matters in his professional life, at times he would say, 'Winslow, I think we should go out and look at the garden.' It was one of the most important things in his life. He had a need to work in the soil." Alba also mentions the importance of the garden, reminding us that he labored long and hard on a pursuit he loved, one which provided exercise and relief to his otherwise demanding and sedentary life. The garden was all Bernie's. He had no assistance until his last few years.

Betty Barry Deal, a retired justice of the State Court of Appeal, recalled her first encounter with Bernie, illustrating his compassion and sensitivity to the needs of others. She was seeking a place to live when landlords were reluctant to rent to widows with young children. She learned of the lower house on the Witkin property and when she informed Bernie of her situation, he responded, "Bring your children, bring your family, and bring your elephants. They are all welcome."

It is well known that Bernie relished Gilbert & Sullivan. He was also fond of Italian opera, particularly Verdi, and the sentimental romantic music of an earlier period. Among his favorite authors were James Branch Cabell and J.R.R. Tolkien, whom he greatly admired. He read science fiction extensively and delighted in detective fiction, especially the stories of Ellery Queen.

Bernie was a member, often honorary, of many organizations. Because of his interest and knowledge of the history of the California Supreme Court, he and Alba became founder members of the California Supreme Court Historical Society. He was a member of its first board of directors. In this venture, I served closely with him for two years.

It was his desire that objective and definitive history of the court be written. At board meetings, he spoke only on important matters and when he did, his opinion usually prevailed. After one meeting in San Francisco, we shared a taxi to our homes in Berkeley. In the slow, rush hour traffic, he regaled me with stories of the court and the prominent figures and events which shaped its development and stature. He reiterated his belief that it is essential to the success of the court and the administration of justice that there be competent attorneys, skilled in the art of writing opinions to complement and support the judges. He was deeply concerned lest this practice be eroded.

I have many remembrances of a legend. Others will have their own. Mine will be treasured, and at quiet times, some, long since forgotten, will return. As Edwin Arlington Robinson expressed it well:

"We cannot know how much we learn
From those who never will return,
Until a flash of unforeseen
Remembrance falls on what has been."

Hal Norton is executive director, emeritus, of the Alameda County Bar Association and executive director, emeritus, of the California Supreme Court Historical Society.

EDITOR'S NOTE: For more on legal legend Bernie Witkin, see the FEATURES OF THE MONTH story.

Common sense cures

The reason for the failure of the jury system is like G.K. Chesterton's response to the question, "Has Christianity failed?"

"I do not know," he replied. "It's never been tried."

Make the jury system work, in common sense fashion in the following way:

1. Practically no excuses from serving on a jury when called from kept tax rolls.

2. Eliminate all preemptory challenges. The first 12 and that's it. Then start another 12 if needed.

3. Raise the amount of the per diem so that expenses can at least be paid (e.g. parking, gas, one meal a day).

4. Respect jurors. If they are not chosen in a day, they are to be excused to await another objectively chosen selection.

5. All jury selection experts should be forbidden. This is nothing more than a weapon of the rich to defeat the system.

6. Produce various juror questionnaires for various types of cases. They will give the type of jury from the jurors' perspective and not that of the lawyers.

7. The present system eliminates intelligent people who read and consequently who know about the case. Special questions about formation of opinion can be asked to eliminate those who have already made up their minds.

We need a jury system geared not to the lawyers and their clients but to the search for truth that justice may be done. The less lawyers control the system, the better it is for truth and justice.

Peter J. Riga
Houston

Bar members need meaningful information

I think President Jim Towery's response in the January Bar Journal to "Is the bar crazy to buy a building?" itself begs two questions.

First, why does the State Bar have so many employees that it requires a 13-story building with 205,000 square feet in San Francisco?

And second, doesn't it seem like a 10-year amortization for a purchase of that size puts a considerable amount of financial pressure on the bar over a relatively short period of time?

There are many people who feel that the State Bar is already a bloated bureaucracy. To say it is cheaper to buy than to rent does not answer more basic questions about the role of the bar into the next century, and the number of people it is going to take to accomplish that role in an efficient manner.

It may well be that upon calm examination of the entire process, the bar in its current form is the preferred method of organization. It may also be that the bar is remarkable among bureaucracies in that it is not inefficient and bloated. But many of us just do not know that yet because meaningful information, presented in a manner clear to all and devoid of the normal bureaucratic doublespeak, is not presented to the membership on a regular and frequent basis.

Hopefully the plebiscite will bring far more of the operations of the State Bar into the open so that all 120,267 active members will have a clearer idea of what it is the bar does for us. Most of us already are aware of what the bar does to us.

John Michael O'Connor
San Jose

An expensive annoyance

Bruce M. Stark's letter in the December Bar Journal clearly states the feelings of most of the attorneys that I know. Obviously there are those involved in bar activities who have vested interests in keeping the thing alive, but to the large majority of members, the bar is an expensive annoyance.

If your secretary told you that someone from the State Bar was on the phone, would you be anxious to take the call?

I'm sure the bar must do some good for the public and for its members, but offhand, I can't think of anything.

Richard L. Poland
Long Beach

Lawyers must perform to earn their pay

The sympathy for Ronald Senzaki in the December discipline section is misplaced and demeans a subculture in our society. At the same time, it is consistent with the present trendy theory that no one is responsible for their own acts.

I strongly disagree with sympathy for someone who took people's money under the representation that he would provide services and then did not provide them. Instead, he gambled the money away and used it for drinking. That sounds to me like criminal activity.

The fact that one matter is 10 years old shows a long-standing method of operation for which he shows no apparent remorse. The number of people whose lives he interfered with is also substantial, but that does not seem to be of any consequence.

His reliance on his Japanese heritage as an excuse for his wrongdoing is an insult. I do not think the Japanese concept of honor requires that you keep doing illegal and unethical acts. I think it would be more appropriate for him to fall on his typewriter or massed betting slips.

Stanley R. Siegel
Oceanside

It is dishonest for an attorney to accept payment for services and fail to perform the services. It is not situational to accept payment for services which you are unable or unwilling to perform.

Depression, alcoholism or drug addiction are reasons to cease practice, not an excuse to continue in a dishonest manner. Cultural differences have no bearing on professional responsibility.

The practice of law is not always a pleasant endeavor. When we applied for admission, we recognized the challenges presented and accepted the responsibilities.

David N. Chandler
Santa Rosa

Bar should discipline errant sports agents

Far too often are the virtues of being an attorney looked down upon by the public at large. Recent stories regarding a Los Angeles attorney and his dealings as a sports agent do nothing to improve our image.

The Los Angeles Times reported numerous stories alleging that several college athletes had received some form of compensation from a Ventura attorney, Robert T. Caron. It was asserted that Mr. Caron provided airline tickets, up to $16,000, pagers and groceries to the athletes. The Times went on to report that the FBI is presently investigating Mr. Caron for possible mail and/or wire fraud.

Mr. Caron has been linked to at least 11 college football players at five different schools, in addition to an Olympic boxer.

As a result of Mr. Caron's conduct, several student athletes have been suspended. The University of Southern California obtained a restraining order and brought a civil lawsuit against Mr. Caron. Although denying any wrongdoing, Mr. Caron agreed to pay USC $50,000 to settle the matter.

In the case of Mr. Caron, the State Bar has the authority and ability to take action. The State Bar is designed to address all forms of misconduct, including solicitation by attorneys. If Mr. Caron caused college athletes to receive benefits, in hopes of obtaining a future client, in clear violation of both the Rules of Professional Conduct and NCAA guidelines, he should be disciplined.

Lorin D. Snyder
Beverly Hills

Profession needs heroes

It used to be that an attorney's word was his or her bond. Ethics should be in the fabric of a lawyer. But because of the destruction of traditions, the profession needs more guidance.

Continuous courses in ethics do not produce morality. But they certainly will provide insight, guideposts, watchtowers and possibly some inspiration.

Our profession, now more than ever, needs heroes and heroines and saints. That is, unless money is our most important product.

Thomas M. Waling
Irvine

Problems and solutions for the justice system

In light of the problems of the justice system and loss of credibility of our profession, I would like to submit the following.

1. Excessive paperwork generated by lawyers. Solution: All legal documents, letters, court filings shall be manuscripts by the hand of the signator. This would at least save a few trees, which, contrary to lawyers, give us oxygen rather than carbon dioxide.

2. Criminal defendants appearing in court dressed by their lawyers like Wall Street bankers. Proposal: All defendants must appear for trial in the clothing worn during the commission of the crime or clothing worn at time of arrest.

3. Rising costs of incarceration. Proposal: Request a bid from the Mexican government to house prisoners in accommodations no less comfortable than those of Mexican minimum wage laborers under NAFTA.

4. Hourly fee system is certainly not an enticement to expedite disputes. Proposal: Both parties, with counsel, mandatorily agree on a date and fixed fee where the controversy will be resolved by settlement, arbitration or fixed trial date. Fee to be held in escrow and to be split 60-40 to winning/losing attorney as determined by referee.

5. Teenage gun violence and murder. Proposal: Five-year draft into a new American Foreign Legion (on permanent loan to the U.N.) for anyone under 21 convicted of unlawful possession, or use of a firearm. After all, why let all that macho energy and weapon expertise go to waste?

Jean-Claude Demirdjiian
Los Angeles

There are easier ways to make a living

Retirement can be a problem if you depend upon the law for a living and if you do not have anything else to do to occupy your time productively.

It really is tough when you retire. When the alarm goes off in the morning, you realize you do not have to get to any appointments or go to court. You don't have to dress up and fight the traffic to your office. You don't have to be extremely careful about your client relationships.

It's great to be independent and not have to face up to all the hurdles that the justice system presents to you as a practicing attorney. No more sneers or lawyer jokes. Just tell them you are a farmer or an investment banker.

My advice to you younger members of the bar is to make a plan now to retire as soon as you can or look for an easier way of making a living than practicing law.

Morris Futlick
Coarsegold

It's pure and simple: a female witch hunt

Two years ago, a female assistant U.S. attorney asked a female U.S. district judge to discipline me for privately telling her that her ways reminded me of a female stereotype. The female judge obliged, but a unanimous appeals court panel unequivocally reversed (United States v. Swan).

The California State Bar's Office of Investigations also started an investigation with a view toward disciplining me. And, despite the appeals court's April reversal, the Office of Investigations did not and would not dismiss its investigation until the end of August when its Office of Trials wrote me a letter warning me that incivility is punishable to maintain "the integrity of the legal profession" and that "continuing conduct of this nature" would mean trouble.

That the State Bar would presume to investigate and to judge the civility of one lawyer privately says to another lawyer outside the courtroom is senseless. Even more senseless is that the State Bar would presume to discipline a lawyer.

The Constitution forbids punishment of uncivil speech, and the Supreme Court has stated that only in circumstances affecting a fair trial does a lawyer forfeit constitutional protection.

It's a sad state of affairs that the State Bar, by trying to impose senseless civility standards, has turned lawyers into quarreling children seeking sanctions against each other for hurt feelings.

The case against me was nothing more than a female witch hunt, pure and simple. When the State Bar gets involved in political and social witch hunting, it is not serving, as it is supposed to do, the interests of the public or of the profession.

Frank L. Swan
Escondido

Stealing client money

When I was in law school 50 years ago, Professor Thomas Reed Powell was widely quoted as saying a good lawyer had to have the ability to think about something that was associated with something else without thinking about that with which it was associated.

Ellen Peck wrote a fine article on client trust accounts and settlements in the December and January issues of the Bar Journal. The articles abound in citations to the Rules of Professional Conduct.

Our client trust accounts are absolutely associated with interest on those accounts. Ms. Peck writes about ethical problems and client trust accounts and, even though trust accounts are associated with interest, she never once mentions the interest earned on the client money in such trust accounts.

In truth, the California bar steals the interest earned on our client money in our trust accounts and pays that interest to other lawyers to do good. In the fiscal year ending June 30, 1995, our California bar took $7,300,320 of our clients' interest and paid itself $550,190, a whopping 7.54 percent, simply to receive the money and parcel it out.

There really isn't much point in writing about settlements and client trust accounts and associated matters until we lawyers stop the despicable practice of stealing our clients' money.

Volney F. Morin
Los Angeles