REGULARS

The bar was deferential to both Wilson and the legislature in its request, but said the lack of funding "presents the real likelihood of long-term damage and lasting impairment of the bar's ability to carry out its judicial functions as the court's administrative arm and to protect the public."

In its order, the court said, "There may be a substantial risk to the public resulting from the absence of an adequately functioning attorney discipline system."

Three questions

It asked for comment and briefing, supported by points and authorities, on three questions:

What authority does the Supreme Court have to impose a fee requirement limited to discipline, and what weight should be given to the numerous out-of-state decisions concerning that authority cited in the bar's petition.

If the court has the authority to impose a fee to fund the discipline system, should it exercise that authority. If so, what should the fee amount be.

Are there alternatives to a license fee that would provide public protection, and if so, what other funds are available.

Marshall acknowledged that the court's order is unusual, but said it "makes eminent sense" to seek comments from a wide segment of the legal community.

"The court recognizes it's a critical issue, a statewide issue, and it impacts a variety of different segments of the community," he said. "The bar will have a lot to say."

Sharon Browne, an attorney with the conservative Pacific Legal Foundation of Sacramento, which has fought the bar in court, said PLF is opposed to any court intervention.

"We will certainly be pointing out to the court that it has no authority to set, collect or appropriate funds," Browne said. "That is clearly a legislative function. We would urge the court not to get involved in a constitutional dispute."

Critics complain

PLF and Republican lawmakers who opposed legislation in the last session to set bar dues have sent letters to the Supreme Court characterizing the bar's petition as an attempt to thwart the legislature.

In its petition, the bar said the stopgap funding would be used to recall laid-off staff or hire new employees "necessary to maintain those essential functions that will prevent further long-term harm to the discipline function."

Because of the likelihood that legislation will not permit the bar to collect member dues, beyond the statutorily allowed $77, until the year 2000, a special assessment might be used to defray expenses for as long as 15 months.

It would be used to partially fund some of the most essential disciplinary functions, including complaint intake and enforcement, the State Bar Court, fee arbitration, the ethics hotline, membership records and general counsel staff necessary to support those functions.

Backlog growing

At the time of the staff reduction, 4,459 open investigations were suspended. Since then, the bar has received 2,097 new written complaints, bringing the backlog of unresolved investigations to 6,556. That number grows by about 150 each week, according to the petition.

In addition to the inability to process complaints, the State Bar Court abated more than 250 pending cases in June, of which 187 remain before the hearing department and 36 in the review department.

Normally, between 700 and 800 cases are pending in the hearing department, and another 60 are before review judges.

In his Sept. 28 letter, Wilson said Supreme Court assumption of control over the attorney discipline system "will protect the public while giving the legislature time to continue to consider the issues of governance, the scope of legitimate functions, and the membership fee level of the State Bar."

He warned that the court's action should not usurp the legislative process and expressed hope that lawmakers can resolve their impasse over the bar as early as December, when the legislature begins a new session.

The bar's petition, Wilson said, places the court in the position of deciding "whether to take the unprecedented step of imposing a membership fee that the legislature had declined to enact, thereby intruding on the legislative process and raising serious separation of powers questions."

The court has held what amounts to public hearings twice before, once in the 1970s, and again in the 1980s. Both times it considered the issue of reapportionment.

Earlier request rejected

In June, it rejected a bar petition asking for an emergency order that California attorneys pay $287 in dues this year. George offered to serve as a mediator among the parties, and although then-bar president Marc Adelman quickly accepted the offer, it was rejected by Wilson and key legislators.

In remarks at the bar's annual meeting in Monterey, Chief Justice George did not comment on either the governor's or the bar's requests.

He urged local bar associations and individual lawyers to step in to fill the gap left by the discipline shutdown, including help with fee arbitration, serving as probation monitors for disciplined lawyers, establishing attorney-client grievance panels and local ethics hotlines, and handling practices left in limbo by an attorney's death, incapacity or disbarment.

"The crisis in bar discipline has had a detrimental impact on the protection of the public," George said. "It is incumbent on the legal system to ensure that clients are protected from those who might abuse their trust."

George has said in the past that he does not favor Supreme Court assumption of the discipline system, which had a $41 million budget when operated by the bar.

The governor did not specify how discipline would be funded were the court to assume jurisdiction.