by James E. Towery
The time has come to move offstage, to return to my firm and practice in San Jose. And not a moment too soon. Before I go, let me share a few reflections on this extraordinary year.
Certainly the defining event for the State Bar this year was the SB 60 plebiscite on whether to abolish the State Bar. I announced a year ago that our primary goal for the year was to defeat the plebiscite, and that we did, by a remarkable 65-35 margin. Equally remarkable were two facets of the plebiscite: the campaign leading up to the June vote, and the aftermath of that vote.
The plebiscite campaign was remarkable in that it witnessed the largest and most effective coalition of lawyer groups ever assembled in California, all endorsing the continued independence of the State Bar. The final count was 113 lawyer groups endorsing a "no" vote, including every major local bar in the state, a significant number of minority and specialty bars, and State Bar committees and sections. Thousands of volunteer lawyers joined the campaign, and we received endorsements from the California Judges Association, former Chief Justice Malcolm Lucas and seven other retired justices of the California Supreme Court. This coalition deserves the credit for the impressive victory in the plebiscite campaign.
Equally impressive in my view is the aftermath of the plebiscite victory. That reaction, shared by the volunteer leadership and the management of the State Bar, is not one of smugness over the victory. To the contrary, the reaction is one of a commitment to reform, a commitment to be responsive to the concerns of the membership, both those who supported and opposed the plebiscite. Evidence of that reform includes the bar's commitment to be more customer-friendly and to improve communications with the membership (a principal goal of incoming President Tom Stolpman), and a commitment to practice greater austerity at the State Bar.
Regarding that austerity, I am very gratified that another of my goals for the year -- a $20 dues cut for 1997 -- has been achieved. The Board of Governors has adopted a budget for 1997 that lowers dues from $478 to $458, the first dues cut in State Bar history. This results from budget-cutting and cost-savings achieved by the board and the senior management of the bar over the last several years. At this juncture, the prognosis is that this dues cut will remain in place for 1998 and 1999 as well. This is certainly an important part of proving to the membership that the State Bar is indeed responsive to the concerns of California lawyers.
This year also marked the birth -- and rapid growth -- of the State Bar's home page on the Internet. This home page was unveiled at the 1995 Annual Meeting. The home page began with only 40 pages and has grown to more than 2,000. The visits to the home page also have shown remarkable growth, from 4,000 hits per week in January to 30,000 hits per week in August. The California Bar Journal, the Rules of Professional Conduct, section newsletters, consumer pamphlets, the Conference of Delegates resolutions and a host of other information are now accessible online. Even the results of the bar exam were posted this year on the Internet. I am very excited about the prospects for the further growth of the web site. The membership records of the State Bar are scheduled to be online by the time this is published, and the next year should witness a great growth in the interactivity of the web site. It should prove to be an important tool in fostering communication between the State Bar and its members.
We survived many other challenges this year, including the SB 60 audit, the crisis in legal services funding, and the greatest controversy over JNE in its 16-year history. We also had many other accomplishments, including the permanent disbarment rule, jury reforms, juror education efforts, purchase of a new building in San Francisco, adoption of the Access to Justice report with long-term solutions to legal services issues, and many others which are described in more detail in the accompanying article on these pages.
In short, it has been an extraordinary, active year. My final thought: it has been an honor for me to serve the profession this past year, and I am very grateful to all of you who played a role in our many accomplishments this year.
This has been a year of both retrenchment and innovation for California's newly revamped attorney discipline system. By centralizing operations and reducing the staff in the bar's Office of Chief Trial Counsel, State Bar Court and Complainants' Grievance Panel, costs have been cut by $1.2 million in the last two years. The discipline system's case backlog has shrunk to fewer than 150, less than half of what it was in 1994. As part of the revamping, State Bar prosecutors are giving even greater priority to the most serious cases of misconduct and funneling appropriate minor matters into expanded diversion and prevention programs.
In April, a Uniform Charging Standards Manual was published as a resource to help the staff make consistent decisions. A new internal unit also was formed to review the decision-making in some cases and to assess operations. And the new, independent Discipline Audit Panel, which replaced the former Complainants' Grievance Panel, has begun conducting audits to monitor the system's efficiency and fairness.
The State Bar Court, which independently adjudicates discipline, admissions and regulatory cases, faced major challenges this year. A new presiding judge and four new hearing judges were sworn into office in the middle of the court's restructuring. To save costs, one judgeship was left vacant following a vacancy that occurred in May. Also updated this year were the benefits, terms and conditions for the new judges and procedural rules clarifying the role of the presiding judge and certain administrative functions of the court. Despite the disruptions, the new panel of judges continues to expeditiously adjudicate the court's caseload.
Regulating the profession and protecting the public requires more than an effective discipline process. This year, strike teams, including staff from outside the discipline system, mobilized to target misconduct posing the greatest threat to the public. For example, a strike team on illegal lawyer referral services (LRSs) filed a civil action (applying new statutes) seeking an injunction and monetary penalties against two businesses. And a litigation strike team joined forces with the state attorney general to sue an Orange County-based alleged "trust mill" accused of using scare tactics and unlawful business practices to peddle living trusts and annuities to senior citizens.
These landmark suits are indicative of the bar's efforts to curb the unauthorized practice of law (UPL). Because the bar's discipline system has no authority over nonlawyers, the bar historically has been unable to offer much help to consumers victimized by UPL. However, in light of the harm that UPL can cause to the public and the profession alike, two key State Bar committees recently adopted an action plan calling for stepped-up litigation, disciplinary action against lawyers who aid and abet UPL, participation in legislative reforms and a campaign to educate the public. With a new UPL oversight team at the helm, the bar intends to focus on UPL activities with the greatest potential for harming consumers.
This year's work also led to new discipline-related rules and proposals aimed at the few attorneys who repeatedly commit egregious misconduct. Those attorneys now face stiffer consequences -- the possibility of permanent disbarment. This recent rule change gives the State Bar Court the discretion to recommend permanent disbarment or a minimum waiting period of five or 10 years for disbarred attorneys who seek reinstatement. (The state Supreme Court still must approve all disbarment orders). The revision also extends the wait to 10 years, under certain circumstances, for attorneys who resign with charges pending and requires petitioners to pass the California Attorney Bar Examination. The previous rule set a five-year wait for all petitioners.
Admissions & Professional Competence
This year, the bar put major resources into activities designed to enhance attorney competence and help attorneys resolve their practice issues and ethics questions. A key service is the bar's one-year-old Law Office Management Assistance program (LOMA), which helps attorneys master the complexities of running a law office. Attorneys can call LOMA's help line, sign up for confidential law office audits or use LOMA's 24-hour fax system to access its growing database.
Registering as a Limited Liability Partnership (LLP) is another new opportunity for lawyers. Such partnerships, permitted by legislation last fall, are entities liable like corporations and taxed like partnerships. In less than one year, more than 500 LLPs have registered with the bar.
Expanding the forum for grappling with the many crucial ethics issues facing the profession, the bar held its second annual Ethics Symposium this spring, in addition to answering some 20,000 requests for information from its Ethics Hotline this past year.
Enhancing attorney competence and bolstering public protection also entails legislative work, and drafting and revising rules to keep up with changes in society and the profession. Highlights of recent work include:
Caught in a deepening legal services crisis, three out of four poor Californians currently face their civil legal problems without any legal representation. According to a report released this year by the bar's blue-ribbon Access to Justice working group, America stands virtually alone among the world's industrial democracies in not guaranteeing civil indigents the right to counsel.
With recent cuts in federal funding for legal services and the threat of more to come, poor Californians face an even bleaker future. While the ranks of California's poor have swelled by more than two million since 1980, the number of legal services attorneys paid to assist them has decreased by 130. In addition, fallout from the crisis is likely to further tax California's already overburdened court system. The bar played a lead role this year in coordinating a response to the crisis. Efforts to reverse the crisis include:
Outreach & Customer Service
This year's statewide attorney plebiscite delivered a strong vote of support for California's 69-year-old unified State Bar, but it also underscored the need to improve the bar's responsiveness. As a result, the bar has stepped up its outreach to members and has begun focusing more attention on good customer service. Board members and staff made hundreds of visits to local and specialty bar associations this year, providing assistance and creating a forum for California attorneys to voice their concerns.
A special five-member working group is developing a plan to improve the bar's outreach to public lawyers and encourage more public-lawyer involvement in bar activities. And in keeping with the bar's diversity action plan, two minority bar leader summits were held this year to determine how the bar can further address the needs and concerns of minority lawyers.
The bar also adopted an "Employment Policy" and "Policy on Reasonable Accommodation in Employment," and a pledge program this year to enlist the legal community's assistance in promoting legal careers for people with disabilities and chronic medical conditions.
Practicing solo or in a small firm often entails many responsibilities not shared by attorneys working in large law firms. To assist such practitioners (nearly half of California's attorneys) and encourage their participation in bar programs, the bar offers a Spring Section Education Institute tailored to their interests. A free brochure, developed this year, describes other benefits and services geared for them.
The bar's board also approved the creation of a new senior lawyers section this year. The bar's existing sections -- with more than 70,000 members -- annually provide numerous continuing legal education programs (more than 600 hours this year alone) and regularly draft, review and comment on legislation affecting the profession.
Recognizing the need to create a smoother transition from law student to new lawyer, the State Bar held several roundtables this year with law school deans and school representatives from all over California. The discussion centered around the roles of the schools and the bar in providing more practical training in client relations for law students.
The bar also is working to instill established attorneys with an appreciation for good client relations. An hour-long State Bar program -- "Client Relations: A Key to Success" -- was created to raise awareness and is available to local bar associations. A new program (a continuation of the first) will debut at the Annual Meeting and will focus on practical how-to tips.
The Justice System
The justice system -- and, in turn, the legal profession -- has fallen under intense scrutiny in recent years. Thrust into the media spotlight, several controversial trials -- the O.J. Simpson case, in particular -- have sparked public concerns about the legal system, particularly the jury system and cameras in the courtroom. Recognizing the importance of these issues, the bar joined in several high-profile debates this year and held forums to gather the diverse views of California attorneys.
In response to outcries for jury system reform, the bar invited a broad cross-section of attorneys to two forums -- one in San Francisco and the other in Los Angeles. A comprehensive State Bar report summarizing the views culled from the forums and recommending changes in the system was presented to the Judicial Council for review. The bar's board ultimately voted to support many of the reform recommendations adopted by the Judicial Council, including the enactment of a child-care program for jurors and the use of state funding to increase juror stipends. Board members disagreed with the council's proposals to reduce the number of peremptory challenges and the size of juries, and to identify jurors by number only.
A bar task force also studied the highly charged issue of cameras in the courtroom. The group's findings sparked an impassioned debate among the bar's board members who ultimately reversed a 1980 bar policy opposing the use of cameras and tape recorders in court. The board voted to support rules that would continue to allow cameras in court at the judge's discretion.
The State Bar's Commission on Judicial Nominees' Evaluation (JNE) -- a volunteer commission which rates judicial candidates confidentially for the governor -- also landed in the public spotlight this year. The commission's evaluation criteria and motives were called into question when allegations of a breach of confidentiality arose prior to the confirmation hearing of Supreme Court Justice Janice Rogers Brown. However, a special investigative panel composed of a former appellate justice, a prosecutor and a municipal court judge, found no evidence linking any JNE commission member or anyone else to the alleged "leak" of confidentiality. In addition, a State Bar-appointed advisory committee currently is studying whether improvements can be made in JNE's rules, procedures and criteria for evaluating and rating candidates.
A joint California Judges Association/State Bar working group made headway this year in its enormous task of developing statewide uniform court rules. Differing local court rules often complicate the legal process for attorneys and lead to higher costs, a greater likelihood of errors and, in some cases, the filing of malpractice claims. This year, the working group delivered its second set of proposed uniform rules (rules for law and motion, and preliminary injunctions and bonds) to the Judicial Council. Already under evaluation by the Judicial Council are proposed uniform rules for the areas of form and format of papers, pleadings and summary judgments.
As part of its continuing efforts to foster the use of appropriate dispute resolutions (ADR), the bar played a major role this year in issues relating to the scope of review of contractual arbitration awards. Seeking a consensus, the bar held a special meeting of interested parties. As a result, the bar proposed a compromise amendment for pending legislation (SB 692) that would create a two-tiered standard of review. It would expand the scope of review only for an arbitration award in a consumer contract, which could be vacated if it is "manifestly erroneous and results in substantial injustice." In the case of non-consumer contracts, the parties generally would be free to negotiate the arbitrator's role and the review standard to be applied in that particular case.
Communications & Public Education
Impressions and attitudes about lawyers, the law and our justice system begin at an early age. This year, the bar launched an initiative entitled "Kids and the Law" and sponsored a first-of-its-kind survey examining how 10- to 14-year-olds view the law. Partially funded by a grant from the Foundation of the State Bar, the survey found a prevalence of law-and-order-minded youngsters who believe that tougher consequences would deter them from committing crimes. Focusing on related topics, the bar held a satellite media tour and a townhall-style cyberspace discussion. And in an ongoing statewide youth program co-sponsored by the bar, some 50 students from 18 communities -- participants in the school-based Law Works program -- visited the legislature and presented anti-violence projects to state lawmakers. In the coming weeks, a new State Bar booklet, "Kids and the Law: A Legal Primer for Parents," will offer parents some practical, easy-to-understand answers to legal questions involving their children.
With a spate of high-profile, controversial jury verdicts dividing public opinion and further weakening the public's faith in the jury system, educating the public about the jury system also has become a priority. A State Bar-funded, mini-documentary, "Juries on Trial," (airing this fall on PBS stations statewide) takes a hard look at the problem. A public service announcement for TV spotlights the excuses (some verging on the ridiculous) given by those seeking to escape jury duty. Plans are also in the works to create a set of school lesson plans centered around the jury's role and to build a clearinghouse for distributing information to courts and consumers.
Next year, the bar's Bay Area staff will be moving to new quarters. This year's decision to purchase an existing building in San Francisco followed extensive analysis by financial, real estate and facilities ex-perts. Not only will the move consolidate the bar's Bay Area staff, it also will save an estimated $14 million over the next decade. And after a 10-year loan is paid off, the bar's savings will be even greater -- approximately $2.6 million a year.
The move will require extra effort on the part of all, but attorneys and the public alike can still expect to see marked improvements next year in the bar's outreach and responsiveness.