California Bar Journal

Let's halt token cost assessments

by W. NOEL KEYES

In a recent article in the California Bar Journal, State Bar board member Jeffrey A. Tidus, who co-chairs the board's committee on regulation and discipline, praised much of what is wrong with the current system - a system which he seeks to preserve. He states "the bar follows a formula rather than determining the actual cost in each case." The result is that the assessment is almost token when compared to the actual costs.

Even Mr. Tidus admits that "currently, the bar recoups only a fraction of its discipline costs from disciplined attorneys." Yet, he states, "creating a special bill in each instance would drive up costs and lead to endless litigation." Nothing could be further from the truth.

Melissa Thorme, another writer in that issue, asked for "restructuring the payment process" which would impose the costs on the minority of attorneys who are disciplined rather than on the "nondisciplined" majority "through 85 percent of their bar dues." Other such writers pointed out that the bar wrongly spends our dues on political issues and lobbying.

We should all struggle to defeat the current efforts of the bar's governors to reinstate the funds vetoed by Gov. Wilson unless and until such reforms become fact. Until the mid-1980s, California was among the minority of states with no provision for assessing costs on disciplined attorneys.

At that time I drafted a bill (which was introduced by then-Assembly-woman Lafollette) to require assessments and to make them approximate the actual costs of the process against the disciplined attorney for the first time. (See 16 Bev. Hills B.J. 253.)

Representatives of the State Bar opposed the entire bill at hearings before the judiciary committee of the state legislature. They also claimed that their accounting system at the time could not support the bill. (Since then that system has changed.) Only when it became clear that they would be defeated did they agree to the bill, but with the change to assess whatever the governors might call "reasonable" costs.

As a result, the amended bill became law in our state. But these assessments are the virtual token costs which are now the cause of resentment by the bar's membership. (See 26 Bev. Hills B. J. 184 (1992).)

There is no basis for not restructuring these assessments so that they are fairer and approximate the actual costs of disciplining attorneys to a much greater degree than present.

This would greatly alleviate the budget problem.

W. Noel Keyes is a professor of law emeritus from Pepperdine University School of Law.