Noble sentiments don't put food on the table

On the front page of the June issue is an article reporting that the State Bar is appealing to lawyers to take on indigent capital appeals. No doubt the sentiments are noble, but the article fails to mention the reasons why many such as myself will never accept another one.

One of the reasons, of course, is that the hourly rate of pay comes to about half the amount that "real" lawyers charge "real" clients. The rate of pay is $98 per allowable hour. What that means is that when you submit a bill the Supreme Court decides how many hours of your time they want to pay you for and how many hours are not "allowable" and won't be compensated.

In addition, sometimes the court will reimburse you for "out-of-pocket" expenses and other times it will decide that it was an unnecessary expense or office overhead and refuse payment.

Often when counsel try to avoid that problem by seeking prior approval of major expenses, such as for hiring an investigator or expert, the court simply refuses to authorize the funds, or will authorize only a fraction of the amount needed to do the job.

Unfortunately, none of this is unique to representing clients on Death Row. Anyone who has ever accepted appointment to represent an indigent appellant in the Courts of Appeal knows that the same things happen in those cases.

It seems to me there are some interesting social policy questions here, but there is also another question closer to home. What percentage of my union dues -- my $450 per year in State Bar dues -- is being spent to improve my working conditions, to assure that I am paid for all the hours that I work and to thereby help to rectify the shortage of lawyers willing to accept appointment in death row cases?

Unless I've missed something, the answer to that question is, "Not a nickel, bub!"

R. Charles Johnson
Petaluma

Allow some issues to be debated, but not others

Regarding John Sullivan's opinion piece in the May issue of the Bar Journal: The only place the lawyer image is tarnished is in the minds of people like Sullivan who are on the lobby circuit to convince the gullible of their political big business views.

As for the Assembly bills Sullivan has worked so hard to promote -- it is obvious that his views are "justice be damned." The only thing good for the people of California is what is good for his big business fellows.

Get serious -- wrongful termination and discrimination actions don't chase business from California. Those actions merely provide a more level playing field between employers and employees in a state where collective bargaining is a thing of the past. And don't attempt to argue "all those frivolous actions."

As for Ed Kallgren's pro-MCLE position -- Aaaww -- come off it! MCLE is nothing more than a cash cow. You want to insure competence, beyond that which malpractice actions guarantee? Test every lawyer every year. Make the State Bar examination an annual event. Test every lawyer in every area of their individual expertise.

Perhaps Kallgren considers MCLE a minor expense to lawyers. I do not. I don't object to Kallgren's opinion appearing. Divergent opinions within the legal community are expected. I do object to a forum for the likes of Sullivan who have no interest in law and justice, but who are simply out to promote their American way. It is time we take these people head-on.

Michael S. Duberchin
Sherman Oaks

• California Bar Journal permits debate on all bar-related topics.

Two different publications, two different owners

Why is it necessary for the State Bar of California to publish both the California Bar Journal and California Lawyer magazine? This seems redundant and a waste of bar dues.

I assume the glossy California Lawyer magazine costs more to publish than the California Bar Journal, so why not integrate the few non-redundant portions of that publication into the California Bar Journal and cease publication of California Lawyer?

Albert W. Ramirez
Fresno

• California Bar Journal is published by the State Bar and is supported by advertising revenue. California Lawyer is owned by the Daily Journal Corp., not the State Bar.

Bar's priorities questioned

The Bar Journal never fails to remind me why I voted to do away with mandatory membership in the State Bar; the May issue doubly so. Two front page articles served that purpose.

"The bar appeals the unconstitutionality of the MCLE determination." Why? The legislature imposed it on us, using that body's customary basis for legislation: inductive reasoning. Let the legislature appeal it.

"State Bar . . . halt(s) trust mill sales." Ha! Where was the bar for the last 10-15 years during which hundreds of thousands of Californians were the victims of the unlicensed and illegal practice of law, not only by the "mills," but by anyone else who holds a "seminar" and even our largest banks?

Apart from the fraud inherent in laymen "selling" trusts, that insidious practice too often means that the victims go to their graves thinking they planned their estate effectively, when in fact, they simply bought expensive garbage.

Ten years ago, I wrote the bar pointing this out. Six months later I received a one-liner acknowledging my letter. About five years ago I wrote the bar president, the attorney general, the Contra Contra Bar president and the Contra Costa district attorney recounting a particularly egregious case and urging prosecution. The latter wanted to proceed civilly, but pled "no money." The rest didn't respond at all.

Now, when the bar finally does something and creates the opportunity to make an example by judicial decision, it settles, prompting the Alliance for Mature Americans to notify its victims "nothing in the settlement affects your living trust . . ."

Great job, State Bar! If you were my lawyer, I'd complain to the bar and maybe taking MCLE would be your sentence.

Thomas N. Stewart Jr.
Walnut Creek

Two bars better than one

I have noted and strongly support the many outcries of small law offices in last month's letters to the editor against MCLE and other State Bar foolishness.

As a sole practitioner, I feel I have no meaningful say in what the bar does. It has foolishly spent $900,000 (over two years) lobbying for matters about which I couldn't care less, has supported mandatory (and totally worthless) MCLE, and maintains an inefficient organization devoted to the interests of big civil law firms.

I don't want to go to MCLE programs on stress reduction where they eat veggie sandwiches and meditate in yoga positions; or substance abuse programs where half the audience is drinking; or computer education put on by someone who barely knows a computer from a television set.

I get most of my MCLE requirements, fortunately, by attending the annual CACJ/CPDA death penalty seminar, a very worthwhile program. I'm lucky.

If the powers that be want to have this junk, why don't we have two bars? One for the social elite and political fellows who want this junk (often paid for by others than themselves) and one for those who want a serious bar association.

I admit I may have made a mistake in voting recently to retain the State Bar. Perhaps the other alternatives are not so bad after all.

Richard Power
Shingle Springs

Public needs information on disciplined attorneys

It is not often that I as a member of the public get to see the California Bar Journal (or any other legal newspapers). Therefore, I do not have any information about a disciplined attorney who violated his expected conduct and survived to repeat the offense again and again. More's the pity.

In 1989, I engaged the services of a prominent attorney who, unbeknownst to me, had misbehaved in such a manner that in 1990, he was publicly reproved and obliged to return over $100,000 in excess fees.

He also was being investigated for the same offense which occurred in 1988. In 1996, the bar court, after completing its investigation of that complaint, suspended his license for six months with two years' probation and ordered him to repay over $200,000 to his former client.

Today, I am preparing for trial against the same wrongdoer who took in excess of $300,000 from my husband's medical malpractice settlement in 1994. It has come to my present attorney's knowledge that there are other cases against him (in addition to some which have been settled).

Had I been aware that this "disciplined" attorney was even a one-time violator of public trust, let alone a chronic violator, I would have avoided him like the plague, his expertise notwithstanding.

My beloved husband died in 1993 from the injuries he received because of medical malpractice. In my opinion, he was betrayed by both the medical profession and the legal profession -- and the State Bar.

Audrey E. Flanagan
Sherman Oaks

• State Bar discipline reports are released to the general press bi-monthly.

Bar should focus energy on reforming MCLE

Funny, I don't remember the State Bar polling its members to determine whether they wanted their bar dues (which are already outrageous) spent on prosecuting an appeal for a decision with which I have yet to hear a single lawyer express any disagreement. The MCLE system does not work. Providers make a ton of money (including the State Bar) by overcharging attorneys for classes they would attend without a requirement.

Additionally, I find that because I am interested in only courses that are relevant to my area of practice, I wind up taking the same classes every three years, learning precious little.

Why is it that the bar, which is supported by the dues of more than 150,000 members, has so little interest in determining whether the people it is supposed to represent actually are in favor of its positions?

Rather than preserving a system which does not work and which no one has yet shown curbs or reduces the need for discipline, the bar should focus its energies on reforming that system, or barring that, eliminate it altogether.

Can someone please remind me why I am "taxed" almost $500 per year by an organization that does not seem interested in representing me?

Eric S. Blum
Brea

Make no exceptions

I agree 100 percent with Susan Cameron of Soquel who says, "shame on you, board of governors" (May Bar Journal) for using our dues to defend the "dubious" MCLE exemption privileges. I believe that continuing legal education should be mandatory, but not just for those of us who are in the courts or trenches every day, but each and every active California licensed attorney.

That includes professors, retired judges and politicians (each of whom, by remaining active, professes a level of expertise in law more than simply having completed a course in law some 30, 40 or 50 years ago.)

Robert Sainburg
Los Angeles

3 cheers for appellate court

MCLE mandates are punitive and irrelevant to many professional practices. Had the legislature mandated that lawyers stand on a bridge for 12 hours a year and do nothing, it could have the same affect.

Mandates are the most insidious kind of taking without compensation. MCLE is an appropriation of money and valuable private property rights which a lawyer has in his time, attention and education, for a vague and hypothetical public purpose.

The argument that other states have MCLE, and thereby also violate fundamental rights in this manner, should no better justify bar mandates than it did slavery laws. The appellate court made the right decision concerning MCLE.

Phillip D. Reed
Carlsbad

Appeal a waste of dues

The court of appeal MCLE decision makes perfect sense to me. I can't believe the bar really disagrees with this conclusion on the merits.

I have some questions for bar officials: Why are you wasting my mandatory dues to appeal an adverse decision which so clearly is right? You are supposed to be a professional organization. As such, you are supposed to consider the legitimate interests of all California lawyers -- not just the interests of the privileged and powerful few who are exempt from the present MCLE legislation.

Why don't you simply seek a new MCLE statute which applies to every lawyer who represents clients? Such a statute would be fair to everyone and constitutional.

Did you decide against pursuing a fair legislative solution for fear that lawyers in the legislature will not vote for a mandatory MCLE statute which applies to lawyers in the legislature?

If not, please explain why you are appealing a fair and correct decision rather than trying to enact a fair and constitutional statute.

Donald J. Horvath
Coarsegold

An attitude problem

That seemed to me a snide remark after Ms. Freytag's letter to the editor in your June issue. No, I do not know Ms. Freytag. I am also a member of the New York and District of Columbia bars and they share neither the attitude, nor the costs of this bar. I doubt this will get printed because I see no rational reason why California charges me $458 per year, while New York and D.C. charge me $150 and $110 a year, respectively.

Also, who is paying for the appeal and paid for the previous four years of legal work on the MCLE case?

Even Patton Boggs is envious of your lobbyist's contract.

Also, I will be voting for the public member for president of the State Bar this year. I do not believe that has been tried in the 70 years since the bar was formed.

Troy X. Kelley
Glendale

• Only board members elect the bar president. The MCLE appeal is being handled pro bono

MCLE credit for jury duty

My recent and first-time service as a juror has been interesting, satisfying, an education and a contribution to the system. To encourage a broader support from within our legal system, I suggest three rules of adoption by the appropriate body:

1. Five hours MCLE credit for jury service.

2. With the MCLE compliance filing, require a certification along the following lines: "I accurately completed and returned any and all juror affidavits received by me in the last three years."

3. For purposes of (2) and juror selection of members of the State Bar, there shall be a rebuttable presumption that jury service of less than 15 days will not impose a financial hardship on any lawyer who is a partner in a law firm of 20 or more attorneys.

Thomas A. Doran
Los Angeles

Bring out the hook

I noted with interest the latest comedy act of the California State Bar. I refer to the flyer inserted in the May 1997 issue advertising services of Maharishi Mahesh Yogi to help us poor, confused lawyers survive in the hostile jungle of the MCLE credit program.

To deal properly with the State Bar and MCLE, we would be better off getting help from Yogi Berra.

Eugene E. Dunnington
Garden Grove

What would Yogi say?

The MCLE hoax is demonstrated by the insert in the May issue of the Bar Journal, wherein Maharishi Mahesh Yogi (a clever businessman, Guru), would grant 12 hours of MCLE credit for only a $500 fee. It would be amusing except that it's so tragic an illustration of the ridiculousness of MCLE.

Jerry S. Berk
Los Angeles

A candidate for Yogi's class

The bar's general counsel has told us that MCLE "is an important component of the bar's public protection mission." How solemn this mission is can be seen by the advertising insert in the May issue from the Maharishi Mahesh Yogi, telling us that we can earn 12 hours of MCLE credit by taking his course on transcendental meditation. A grateful public is really protected now!

Since we have an organization that rules us without representing us, I wonder what would happen if bar members en masse simply refused to pay their annual dues or to comply with any MCLE burden that might be reimposed.

Mark Leinwand
Agoura Hills

Professional pride drops

Fully recognizing that lawyers must frequently assume unpopular positions in their duty to represent their often unpopular clients, it seems that ethical values have become grossly distorted.

We all know that behind each frivolous legal action we will frequently find an attorney motivated by substandard professional specifications.

Assuming the accuracy of the media reports, the limit was shattered recently when an attorney announced he intends to file an action against the police for their failure to summon medical aid for the dying son of his client.

The very notion that anyone should be legally expected to come to the immediate aid of this individual, which resulted from his cavalier participation in a North Hollywood bank robbery, is outrageous.

In my view, the disrespect that this attorney has displayed in his announced intention is an embarrassment to the profession. The term "unconscionable conduct" seems appropriate to describe the use of his credentials.

I have not practiced law in California for several years, having lived in another state until recently. Nonetheless, I continued to regard myself as an "attorney" while teaching in my field.

Thanks to the rapid general decline in respect for the legal profession, my professional pride has also diminished rapidly.

Richard A. Dionne
Perris

Active status fees a burden to new attorneys

Regarding the article on inactive and active status in the June issue of the Bar Journal: For many new attorneys, inactive registration is the only alternative.

The fact remains that many new attorneys cannot find legal work of any kind, and therefore are forced to pursue other careers to earn a living. Registering as inactive allows these attorneys to keep their hard-earned bar membership alive.

In addition, attending MCLE courses is a luxury for the young, debt-ridden, non-practicing attorney working in a shoe store. Why should this growing class of non-practicing attorneys pay the same fee as a wealthy partner in a prestigious downtown firm?

Tracy Barrett
San Francisco

Big lotto win needed for active membership status

Most of the people I know who go inactive do so because they can't pay the exorbitant fees. They would like to do a few matters a year (such as writing a letter or two for relatives and friends). It is ridiculous to expect us to pay $500 for the privilege of writing a couple of letters that say "attorney-at-law" on them.

Perhaps it is time for the State Bar to take a survey of inactive members who are still in the state and not retired. I would wager that most of them would be active if it were affordable.

Think of the unnecessary loss of membership because of the exorbitant fees. It costs far less to have a medical license in this state.

In the meantime, pending a lotto win, I will probably stay inactive.

Judy Anderson
Santa Ana

Attorneys need advocacy group to help themselves

Has anyone thought about forming an association of lawyers, voluntary, separate and apart from the State Bar and whose primary function would be to help lawyers?

The association -- "California Association of Attorneys," maybe -- would charge nominal dues, hopefully, which would be used primarily to promote the public image of lawyers as unsung heroes and oppose anti-lawyer activities in general -- in Sacramento, in the movie and TV industries, etc.

It would not be involved in licensing or discipline (or mandatory back-to-school programs). In fact, we may be the only profession that doesn't have such an association.

Pharmacists, for instance, have the California Pharmacists Association, which is entirely separate and apart from the State Board of Pharmacy and frequently goes to bat for its members in opposition to the Board of Pharmacy.

It occurs to me that such an organization just might help to restore our profession to what it was when I started in 1952 -- a noble profession, well-thought-of and fun.

Anybody interested?

Donald B. Brown
Torrance

Solving the malpractice insurance problem

I would propose a malpractice insurance system which requires an investigation of all claims before a right to sue is allowed. The process would parallel the DFEH filing in an employment claim. Before any complaint could be filed in court, a charge would first have to be made with the local bar association or some other designated agency.

A determination would then be issued as to whether malpractice had occurred or not. A notice of right to sue would then be issued to allow the complainant to proceed to court.

No charge would be rejected, but unlike the DFEH, all claims would be reviewed, with a determination of liability made before the notice of right to sue issued.

This would first give the complainant an objective and neutral evaluation of the claims. It would confirm whether there was a valid claim or not, or perhaps even that a different remedy should be sought altogether.

Second, it would allow a "cooling down" period before the action would be allowed to proceed -- giving parties one more opportunity to work out their differences for an out-of-court settlement.

Third, the process would give the State Bar much more detailed information on the types and validity of claims being made. This new information could be a valuable resource for future legislation.

Finally, by making a preliminary determination of the merits, the agency making the determination and notice of right to sue would effectively be putting the parties and their respective counsel on notice of the validity of potential claims and defenses.

This could be a basis for future sanctions for frivolous claims or defenses, and would itself be a deterrent to improper lawsuits.

Once we have taken care of housekeeping details to keep out the nuisance suits, we can begin to address the issue of universal coverage -- perhaps paralleling a workers' compensation scheme.

Daniel G. Emilio
Garden Grove

California Bar Journal invites its readers to send letters on any topic. All letters must be signed with a daytime telephone number and complete address (only the city or town will be used in print). All letters are subject to editing, and no anonymous letters will be printed. Send letters to Editor, California Bar Journal, 555 Franklin St., San Francisco, CA 94102-4498; fax to 415/561-8247; or e-mail: calbarj@ix.netcom.com.