REGULARS

OPINION

That effort, led by both the California Supreme Court and prominent lawyers of the day, was founded on the principle that a unified, independent State Bar was the best method by which to raise the standards for entering the legal profession and to maintain high professional standards for members of the bar.

For 70 years, the State Bar fulfilled that promise. Through its professional staff and efforts by thousands of volunteer lawyers, the State Bar created and maintained the premiere lawyer discipline agency in the country, made numerous improvements in the administration of justice and served both the public and the bar.

That legacy has now ended, and it is uncertain whether it can ever be resurrected.

The legislature has adjourned for the year without passing a dues bill, following Gov. Pete Wilson's veto of the dues bill in October 1997. The discipline system has been effectively shut down since last April. A skeletal bar staff is "warehousing" public complaints against lawyers, and all efforts to have the State Bar improve the administration of justice have ground to a halt.

For the public and for the bar, this is a tragedy of no small dimension.

What lessons can we draw from the demise of the State Bar in 1998? I would draw three:

The bar and the public have not been well served by either the legislative or executive branches in this affair.

The legislature and the governor had 10 months to pass a dues bill between Gov. Wilson's October 1997 veto and the August 1998 adjournment. Without question, they failed--for the simple reason that partisan political issues took precedence over sound public policy. Sadly, it brings to mind Mark Twain's remark: "The republic is only safe when the legislature is out of session."

Some observers have strangely laid the failure to pass a dues bill on the shoulders of the State Bar. I find this inexplicable. Political realities are that the legislature could have passed, and the governor could have signed, any dues bill upon which they could agree, irrespective of whether the State Bar concurred.

The real reason for the lack of a dues bill is that those who had been offended by the bar over the years wanted a stalemate, and a stalemate they got. Assemblyman Robert Hertzberg labored valiantly and long to find a compromise that addressed real and perceived shortcomings of the bar, only to be met with new demands at every turn. It speaks volumes that Gov. Wilson refused to meet with Hertzberg at any point in 1998 until less than a week before the legislature adjourned.

This is not to suggest that the State Bar is blameless. Certainly the bar made mistakes that allowed this impasse to occur in the first instance.

The indefensible lobbyist contract and the misguided support of tort reform legislation were the most glaring of these errors. Nonetheless, the bar's own missteps hardly excuse the failure in Sacramento to pass any dues bill.

The State Bar has lost its special relationship with the California Supreme Court.

From a separation of powers perspective, the State Bar has always acted as an arm of the California Supreme Court in matters affecting the admission and regulation of lawyers. This is hardly unique to California; it is a universal principle in all jurisdictions in America.

What is unique in California is the degree to which the other two branches have asserted their dominion over the bar as well. This has been a gradual trend, long pre-dating the current Supreme Court. The fact remains that in every other jurisdiction in America, state supreme courts have jealously guarded the dominion over their bars, and that tradition has long been eroded in California.

In this crisis, the Supreme Court denied the petition of the State Bar for an order authorizing dues, no doubt based upon the hope and expectation that the legislature and the governor could solve the problem. That hope is now illusory.

I hope the Supreme Court will revisit its decision. In the longer term, I hope that the Supreme Court can re-establish its historic, protective role over the affairs of the profession. Both the public and the bar would be well served if that were to occur.

The State Bar has lost its constituency.

The predominant reaction of most California lawyers to the dues impasse is one of apathy. That is a difficult admission for those of us who have labored hard in volunteer work for the State Bar, but the reality is that most lawyers are unconcerned about its demise.

For this, the State Bar must be held chiefly responsible. Despite its efforts, the bar has obviously failed to prove its relevance to California lawyers. There certainly have been other contributing factors, including the increasing significance of local and specialty bars, the sheer size of the California bar, and ascendancy of commercial issues over professional issues affecting the bar.

When, and if, the State Bar can be reconstituted, this will be the chief challenge facing the bar: to prove its relevance and importance to the very members of the bar it serves.

It will not be an easy task, but it is a critical one.

In the final analysis, both the bar and the public benefit if we can refocus on those issues that led to the creation of the bar 70 years ago--a strong and independent bar with high professional standards.

James E. Towery, partner in Hoge, Fenton, Jones & Appel Inc. of San Jose, served as president of the State Bar in 1995-96.