REGULARS

LETTERS

Now that the State Bar has lost most of its funding, the crackpots and cranks have come out from under their rocks, crowing and cheering their new freedoms. These important freedoms include:

Freedom from any obligation to stay current in their areas of practice.

Freedom from an effective disciplinary system.

Freedom from the extensive educational and information services provided by the bar.

Most California lawyers voted to maintain the bar, a fact not reflected in the high percentage of letters from the whiners and complainers published in this (and other) legal journals.

I’m looking forward to their reaction when the lawyers of this state are licensed and disciplined by the "Bureau of Automotive Repair, Cosmetology and Legal Services" in Sacramento.

Matthew N. White
San Rafael

Pondering the musings of a 35-year veteran

After practicing law for 35 years, I retired at the end of August, with a few observations.

When you are told a lawyer joke, reply that law was the profession of Lincoln, Darrow, Zola and Holmes; that lawyers are the protectors of the Bill of Rights; that without lawyers, industry and government would run roughshod over the workers, citizens and the environment.

Had the State Bar undertaken to protect its lawyers from the "public" (a pseudonym for the insurance companies, medical profession, Silicon Valley and the hereditary rich) rather than undertaken to protect the "public" from its lawyers, it would not be in its present predicament. Rather, the lawyers would be manning the barricades to protect their State Bar.

In answer to the question — "What are you going to do?" — I simply reply that I’ve never let being a lawyer interfere with my family, travel and extracurricular activities. In other words, I’ll keep doing what I enjoy doing.

Peter Rugh
Oakland

Just who deserves the label of ‘arrogant’

As a retired and inactive member of the State Bar of California, I have watched from the sidelines the bar dangle in the wind with both sympathy and some humor. But even I can’t let the editorial, "At the mercy of the rebels it created" by California Republican Party Chair Michael Schroeder (August Bar Journal), go unanswered.

It was the worst bunch of thoughtless claptrap I have seen to date. Mr. Schroeder takes on the bar as arrogant in the matter of IOLTA (interest on lawyers’ trust accounts); 49 other states followed California’s lead in that matter.

As a practicing sole practitioner, I was grateful to be able to manage all of my trust funds in a single account, and I never heard a single client even inquire about interest. Even the Supreme Court in Phillips v. Washington Legal Foundation does not call for the demise of IOLTA.

IOLTA was a good idea whose time had come. What was so arrogant?

Next Mr. Schroeder complains about continuing education. Other professions and other states require continuing education. The courts are removing the free ride for judges, law professors and legislators. I don’t fit in those categories, and neither does Mr. Schroeder. What’s his beef?

The third issue raised is use of dues for political purposes. On that one there is general agreement, and the bar already has fallen to its knees.

Then Mr. Schroeder complains about the Commission on Judicial Nominees Evaluation. Appointment of judges is always a political issue. The backlog of federal appointments is staggering because of Congress’ failing to act on nominations. That Mr. Schroeder doesn’t agree with JNE positions does not make them arrogant or wrong.

I know of more than one attorney who has professed a hope for an appointment to the bench from Gov. Wilson because of their political connections. JNE considers qualifications and acts as a balancing tool. The governor should be grateful. What has the bar done that was so arrogant, Mr. Schroeder?

Finally, there is the issue he raises about bar salaries. I might even agree with Mr. Schroeder, but then we would have to agree that minor corporation presidents should not be paid more than the president of the United States.

Perhaps if professional athletes and university presidents had an annual pay cap of $100,000, then politicians would not have to be envious. If Gov. Wilson is unhappy with his pay scale, he can always switch to a higher paying position. In the meantime, he should do his duty and stop holding 160,000 attorneys hostage.

Arrogance — thy name is Schroeder.

Morton Friedlander
Las Vegas

Writers should know whereof they speak

The August issue contains a lengthy diatribe by Michael J. Schroeder against some organization he identifies as the California Bar Association (CBA). As far as I know, there is no such organization.

Mr. Schroeder may be surprised to learn that the organization about which he has such strong feelings is the State Bar of California.

J. Richard Johnston
Oakland

The bar will endure by riding out the storm

Make no mistake, Gov. Wilson launched this campaign to refresh his fading political career. Attacks on lawyers, like attacks on labor unions, Wall Street, Jews, feminists or homosexuals, can be a real boost to your fortunes, or so the governor seems to believe.

If you can do it in a way that actually benefits the pockets of many lawyers, if not their ethics, then you really have achieved something. Of course, most of us will continue to give good weight to our clients, as we always have, but most of us have never needed any regulation at all. So Gov. Wilson has a carrot as well as a stick.

I was very impressed by bar President Marc Adelman’s summary of the bar’s efforts to respond to Pete Wilson’s criticisms, and believe the bar has made a good faith effort to accommodate its enemies. The bar’s error lies in its posture of continual deference toward the governor, when it is time to accept the truth: A bunch of politicians has targeted us, and we must simply ride out the storm.

Pete Wilson will not be governor much longer. We were complacent in assuming that if we did our jobs faithfully, the legislature would favor us. The bar’s leadership did not always recognize the resentment our self-funded system of discipline caused among those who paid for it.

Let the discontented take note, however: In the long run, we are all served by protecting consumers, and it is almost always better to be governed by people you elect, rather than by political favorites appointed from above. We had a revolution about that in 1776, as I recall. A participant in that funding fight remarked that if they did not all hang together, they were sure to hang separately.

In a sense that is still true. So we must all support Marc Adelman and endure.

David Coulter
Walnut Creek

Ambulance chasing is tough to prove

As a former State Bar prosecutor, I read with interest Stephen B. Austin’s letter (August) regarding capping. The chief difficulty in prosecuting capping cases is proof. Disciplinary charges must be proved by a standard of clear and convincing evidence. Unless the capper is willing to testify that he or she was paid to provide cases, the attorney admits to the violation, or financial records show that money was paid to the capper, it is almost impossible to prove.

As for the last time we read about an attorney being disciplined for wrongful solicitation (ambulance chasing), such a case appears in the July Bar Journal involving Mary Ellen Kaye. This was a criminal conviction referral that resulted only because law enforcement utilized a "sting" operation. Of course, had the State Bar ever tried to utilize such a "sting" operation, the hue and cry from the membership would have been overwhelming.

Mr. Austin is correct in that most of the discipline cases he has read involve far more serious misconduct, typically involving harm to a client. Despite the uproar over the cost of discipline, the State Bar never had the resources to fully prosecute all of the rules and statutes on the books.

I wish that Mr. Austin would have the opportunity one day to prosecute discipline cases. He would learn just how difficult it is to be subjected to constant second-guessing from the ignorant.

David Cameron Carr
Marina Del Rey

Chemerinsky’s liberal view is outdated

Anything authored by Erwin Chemerinsky should be confined to the Opinion page. As proof, I refer to his article, "An unusual Supreme Court term" (August). Chemerinsky describes the 1998 term of the Supreme Court as "less consistently ideologically conservative" and labels some justices "the conservative coalition."

Chemerinsky appears relieved that "not all the constitutional cases had conservative results." If, as he suggests, there is a "conservative majority," would there not be a "liberal" minority? Nowhere in Chemerinsky’s article does the word "liberal" appear. Chemerinsky’s outdated world view is liberal; however, he is curiously afraid to use that epithet.

Peter M. Williams
Long Beach

Letters to the Editor

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.

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: calbarjo@ix.netcom.com.