Sever the ties that bind

by COLIN WIED

The State Bar of California is not what it should be. It is generally acknowledged that it administers the best discipline and admissions system in the country. Beyond that, it is not particularly effective. It's not due to a lack of interest, effort or dedication on the part of bar leaders. It's because over the years, the State Bar, like Gulliver, has been tied down. Should the State Bar be saved or scrapped? Saved, of course, but with a determination to make some needed changes.

The State Bar is a unified or integrated bar. All that means is that membership in it is mandatory if you want to practice law. While bar leaders everywhere support a strong organized bar, most who are part of a unified bar view it with frustration while those outside of a unified bar simply reject it.

The unified State Bar of California bears no resemblance to the bar constitutionally created in 1927. Long ago its Board of Governors turned away from the Supreme Court to the legislature for approval of the bar's right to tax its members. That mindless act has proved to be the bane of the bar's existence.

Public members were added to the California board in 1979, largely at the urging of then-Gov. Jerry Brown. They came to the board with an agenda -- to further the public interest as they perceived it. Their allegiance is to the governor or legislator who appointed them, not to the lawyers or the courts which they deeply mistrust. Little is done by the board without the support of public members.

Until the 1980s, the bar was pretty much ignored by the legislature. Then lawmakers discovered they controlled what the board coveted most: the right to tax California lawyers to support the bar's programs. Passage of the bar's dues bill has happened annually in the past decade in return for concessions. If you doubt these concessions stripped away authority of the bar, consider the fact that a majority of the members of the Committee of Bar Examiners are now public non-lawyer members. The power to appoint them is a real political plus for the appointer who thus rewards his or her supporters.

I remember well the 1986 annual meeting of the State Bar in Monterey. It was the end of my first year on the board. Just before the Saturday lunch, I introduced myself to an influential state senator. We chatted amiably for five minutes and then the conversation turned ugly. He put his finger in my chest and told me point blank: "Either you (governor) guys contribute . . . like the (CTLA) trial lawyers, or you can forget about your dues bill."

Discipline reform caused dues to skyrocket in 1988. I applaud the long-needed reform. I deplore the fact that most of the bar's budget now goes to fund discipline. Non-regulatory activities for the most part go unfunded.

The board humiliated itself a few years ago. The legislature, stunned that the California Supreme Court had held constitutional the term limits initiative (which also reduced the legislature's budget by one-third), retaliated by cutting the Supreme Court's budget by one-third. The board responded by giving the court a vote of confidence -- 11-10.

There are countless other examples of the erosion of the power and influence of the board. For example, legislation was passed that precludes the board from commenting publicly on the appointment or election of an appellate justice. In the infamous Keller case, the State Bar was likened to a labor union and barred from using mandatory dues to carry out a host of activities. Unregulated legal technicians, supported by public board members, press for legislation that would legitimize them. A commission appointed by the board actually endorsed this concept of deregulating the profession.

It has become accepted doctrine that the State Bar exists to serve the public interest and not the judicial branch of government. The bar has been co-opted by a legislature that is no longer a check on the judiciary, but instead controls the bar and stifles its initiative. Public members who can control the election of the president, the transfer of budget oversight from the Supreme Court to the legislature, a legislature that holds the dues bill hostage for ransom, a budget devoted to a discipline system to the exclusion of virtually all else, the drive to deregulate the profession, and the Keller decision all have seriously undermined the State Bar and the ability of the Board of Governors to run it.

So, how do you vote in the plebiscite? After all I have said, it logically follows that I recommend a yes vote. The answer, however, is made difficult by the fact that the question to be presented in the plebiscite is compound and misleading. I would prefer to answer the question "no" and "yes." No, don't abolish the State Bar as a regulatory agency; yes, relegate other activities to a voluntary California Bar Association.

The existing State Bar (i.e., the Committee of Bar Examiners, State Bar Court and Office of Trial Counsel) is doing a fine job with admissions and discipline and could be continued for these regulatory purposes. Alternatively, its admissions and discipline structures could be taken over by the Supreme Court without disruption. Other activities should be assumed by a newly formed, independent California Bar Association. To create one, I would simply re-fashion the existing Conference of Delegates (which is an association of California's broadly supported and highly effective local bars) along the lines of the American Bar Association House of Delegates, and add a Board of Governors. The sections and committees would continue much as they are but as a part of the voluntary California Bar Association.

What about the fear that no one will join a voluntary state bar association? Nonsense. Voluntary state bars typically attract more than 70 percent of eligible attorneys. If it is worthwhile, lawyers will join. The challenge is to make it worthwhile.

Recognizing you can't split your vote as I would like to do, I have regretfully concluded you must vote no. Regulation of the profession must remain with the judicial branch of government. The easiest way to ensure that happens is to retain the State Bar. Those who would dismantle the State Bar would move discipline and admissions to the Department of Consumer Affairs. In response to pervasive public criticism of lawyers and the courts, I sense a legislative appetite to give the bar a spanking by doing just that.

The State Bar's admissions and discipline apparatus should continue as it is, under the aegis of the Supreme Court but without pretending to do more. It would be a tragedy if the duty of regulating the profession were transferred to the executive from the judicial branch of government.

Why should lawyers be treated differently from other professions? Because they must have the independence to represent clients who oppose executive and legislative actions at every level of government. An independent judiciary is the cornerstone of our democracy. I cannot imagine an independent judiciary without an independent bar.

Dean Roscoe Pound said, "There are three ideas involved in a profession: organization, . . . pursuit of a learned art and a spirit of public service." The spirit is still with California lawyers and bar leaders. All that is needed is to remove the ties that bind it.

San Diego attorney Colin W. Wied served as president of the State Bar of California in 1988-89.