Who should run the State Bar?
By Diane Karpman
“Governance” is the topic du jour at the State Bar of California. A “Public Interest Task Force” was mandated by the 2010 dues bill at the last minute and is soliciting input about the way we, as a profession, are governed. The task force is required to report to the Supreme Court, the governor and the Senate and Assembly judiciary committees regarding recommendations designed to “enhance and ensure public protection.”
One possible hidden agenda in this process is the belief by some that there are too many lawyers elected to the State Bar Board of Governors, and that if there were more politically appointed nonlawyers, there would be greater “public protection.” Currently, there are 22 members of the board, plus the president. Fifteen are lawyers elected by attorneys in nine geographic districts, plus one from the California Young Lawyers Association. Note: These nine districts fail to reflect the actual lawyer populations of those geographic areas. The vast majority of California lawyers are located in densely populated Southern California. The remaining six are non-lawyers appointed by the governor, speaker of the Assembly and the Senate Judiciary Committee.
Make no mistake, many lawyers are unhappy with the way the bar is governed. Some have suggested that the board fails to support positions adopted by local bars on critical issues that impact the profession. In a number of recent controversial matters, the board has voted against the positions articulated by the majority of the voluntary bar organizations.
For example, the bar now posts charges filed against lawyers at the State Bar Court. Allegations are posted on the Internet prior to any determination of guilt or innocence. Also, the board now mandates that fee agreements disclose the existence of legal malpractice coverage. (It’s worth pointing out that the absence of a written fee agreement is not a disciplinable offense, yet the failure to make the disclosure regarding coverage is.)
Further, on Sept. 22, 2010, the board of governors adopted a revision to the Rules of Procedure that loosens the standards that apply to admissibility of evidence in the State Bar Court. Instead of applying the California Evidence Code, which has been the standard for many decades, the court will now use standards similar to the Administrative Procedures Act, which are applicable to administrative courts. Evidence will only be required to be “relevant and reliable” and can include hearsay. Many believe this will allow the State Bar to proceed with less reliable proof than has been the case historically. Although the “spin” is that the board favors the interest of the legal profession, on these critical issues, it does not appear to be so.
Lawyers are one of the last remaining self-regulating professions, because the practice of law falls within the judicial branch of government. The power to regulate lawyers is inherent in the judicial function. Some courts have held “that an attempt by another branch of state government to regulate lawyers is an interference with that judicial power and a violation of the state’s constitutionally mandated separation of powers.” (Restatement of the Law of Lawyering, page 9). “Self regulation provides protection of lawyers against political control of the state.” (Ibid.)
The core principles of the profession (often expressed in our fiduciary duties) strongly suggest that regulation by lawyers, who are also fiduciaries, fosters greater public protection. Therefore, although in the three instances explained above our elected representatives voted against the interests of lawyers, they did so because they believed it would promote greater public protection. Public protection is the overarching theme of the rules that govern our profession.
Would there be more public protection if politically appointed lay persons, with ties to Sacramento, were in charge of our self-funded State Bar? So far, the existing board, with a heavy lawyer majority, does not seem to favor lawyer interests over the interests of the public. By allowing lawyers to elect our own representatives, there is a level of transparency that would be absent with political appointees. Giving those who are regulated, a “voice” seems fundamentally democratic. You are invited to make your thoughts known by taking a position on this issue.
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at firstname.lastname@example.org