James Towery

A 'yes' vote means a loss of power

Since there is no third option on the ballot, lawyers must vote 'no' and then continue the reforms which already are being put in place

Each month, President James Towery answers questions from members in this column. Please address your questions to: Ask the President, California Bar Journal, 555 Franklin St., San Francisco 94102-4498 or fax to 415/561-8247. This month's question and Towery's response:

QUESTION: I don't like my choices in the SB60 plebiscite. I fear abolishing the unified bar, because I do not trust what politicians would do with our profession. However, I am not satisfied with the State Bar because I think it is too much of a bureaucracy and too arrogant. I am afraid my "no" vote would be a signal for business as usual, which is not the message I want to send. I wish there were a third option on the plebiscite ballot -- a vote to continue but reform the bar. What advice do you have?

TOWERY: Your question is one I have heard frequently this year. Many lawyers are ambivalent about the unified bar -- they support the concept of an independent unified bar, but they are dissatisfied with the reality of the institution of the State Bar and want to see it reformed.

They ask, in effect, whether it is necessary to abolish the bar in order to reform it, which has echoes of that infamous line from the Vietnam War: "We had to destroy the village in order to save it."

Let me answer your question on two levels: first, how to vote on the plebiscite, and second, what lies beyond the plebiscite.

A limited choice

As to the plebiscite question, you are correct, the question in SB60 gives lawyers a limited choice.

It is a choice between abolition of the bar (with no alternative structure or cost specified) or retention of the unified bar.

For those lawyers who support the concept of the independent, unified bar but wish to see the State Bar reformed, clearly those lawyers should vote "no."

Quite simply, if lawyers vote "yes" and the bar were to be abolished, that would end any hope that we can reform the bar.

The only hope we have of reforming the bar is for the legal profession to retain control over the bar.

Turning the profession over to politicians will, among other negative consequences (see my last few columns), certainly bring to an abrupt halt the reform efforts already underway.

I should note that the proponents of the plebiscite have sometimes argued that a "yes" vote actually sends a message to reform the bar.

The obvious fallacy with that suggestion is the plain language of the ballot question: a "yes" vote is a vote to completely abolish the unified bar.

Now to the second level of my answer -- what lies beyond the plebiscite. Is the State Bar capable of being reformed? What should a lawyer desiring such reform do after the plebiscite?

First, let me say that I believe the State Bar has begun its own reform process in the last several years. This is particularly true in two areas: fiscal accountability and customer relations.

This began before the plebiscite legislation and resulted from the determination of both the Board of Governors and the senior staff of the bar to bring about that reform.

I think we have done an inadequate job of communicating this, but I believe there has been a sea of change in attitude at the State Bar over the last several years.

When I came onto the board in 1992, there was no discussion of budget cutbacks or customer satisfaction. That has changed dramatically.

Two years ago, then-president Margaret Morrow appointed a budget review committee, chaired by last year's president, Don Fischbach. That committee cut $2.5 million out of the bar's $60 million budget.

An astute predecessor

Another astute step which Morrow took was to appoint the Discipline Evaluation Committee (DEC) headed by federal Judge Arthur Alarcon and charged with studying the fairness and efficiency of our discipline system.

DEC rendered its report in August 1994, concluding that the discipline system was fair and effective in protecting the public, but inefficient in many respects.

After receiving the report, the bar board and staff rolled up its collective sleeves, implemented approximately 54 of the 59 Alarcon recommendations, and in the process cut an additional $1.5 million from the bar's budget.

These cuts were painful, causing actual layoffs, but necessary. The staff of the State Bar Court was cut 20 percent and the mission of the Complainants' Grievance Panel redefined, with its staff cut almost 50 percent.

Discipline cuts

Chief Trial Counsel Judy Johnson eliminated an entire level of middle management in Investigations (as recommended by the DEC report) and created additional savings. Would any of these reforms and cutbacks have occurred if a political agency controlled the bar?

On the customer relations side, some time ago Executive Director Herb Rosenthal instituted a bar-wide policy of better customer relations with both the public and the lawyers the bar serves. Staff training in this area continues to the present.

Have these reforms gone far enough?

Certainly not.

How can lawyers be assured the reforms will continue?

First, defeat the plebiscite.

Second, elect lawyers to the Board of Governors who will continue to implement responsible cost-cutting and improvements in customer service.

So long as we retain a unified bar, we lawyers will retain the power to make the bar responsive to the policy directions we lawyers want.

If lawyers vote to abolish the unified bar, we lose that power. It is that simple.