If you do one, do 'em all

by John H. Sullivan

Lawyers who read last month's California Bar Journal know that on March 21, the State Bar's Board of Governors voted to support legislation (AB 250) to gut the California medical malpractice reform law's $250,000 limit on non-economic damages.

Why, you might ask, should the State Bar be taking any position on such a proposal? According to the Bar Journal, that was the very question several board members posed in the meeting at which AB 250 was discussed.

Granted, we at the Association for California Tort Reform have a different position on AB 250 than the bar board adopted. Initially, we couldn't help but wonder if the bar didn't have other bills and issues to focus on that are much more important to all the lawyers who are required to pay bar dues as a condition of practicing law in California.

But since the bar board chose to get into legislation which has nothing to do with regulating the practice of law, we thought that the board should consider and vote on other civil liability-related legislation.

Most of these bills include provisions which are broader in their effect on members of the bar, including:

• AB 843 (Goldsmith): Conforms California's summary judgment statute to the federal standard requiring sufficient evidence for a reasonable jury to return a verdict.
• AB 1171 (Kaloogian): Limits "front pay" awards in wrongful termination litigation to one year's salary from the date of termination and requires a writing to establish the existence of an employment agreement.
• AB 1295 (Caldera): Provides for finality of actions and requires an actual injury to bring an action under the Unfair Competition Act.
• AB 1341 (Morrow): Requires judges to set punitive damage awards and curbs multiple awards for the same act or course of conduct.
• AB 1447 (Ackerman): Prohibits shareholder suits unless a demand for action has been made to directors.
• SB 1278 (Leslie): Prohibits wrongful termination suits based on "implied" contracts, but allows them for violations of an employer's personnel policies, and limits front pay awards to five years from termination.
• SB 1309 (Mountjoy): Requires that the plaintiff has been actually harmed, that a person suing on behalf of the general public be an adequate representative of the public, and that an attorney adequately represent the public's interests in private actions under the Unfair Competition Act.

In the wake of the bar's taking a political position on AB 250, it seems appropriate to consider what the proper role of the State Bar should be. (I was intrigued by the lawyer who wrote recently that "it seems that the State Bar has turned into an organization whose primary goal is to make itself unpopular with the membership.")

It appears that the bar has undertaken a concerted effort to improve lawyers' image with the public. We all agree that lawyers can serve an important public role. However, in trying to polish the image of California's lawyers, it should not appear that the State Bar takes positions on issues which seem to be calculated solely to serve the economic needs of its members at the expense of the larger public its members purport to represent.

The bar might consider avoiding actions that lead to the perception that it has become a political institution subject to the whims of whatever special interest group captures a majority in order to advance its own agenda.

John H. Sullivan is president of the Association for California Tort Reform in Sacramento.