A better bar board
By Bill Hebert
President, State Bar of California
Last July, when I ran for President of the State Bar, one of my pledges to the members of the Board of Governors who voted for me was simple: “No new task forces.” I believed, and I continue to believe, that a governing body should be able to do its work through its existing committees, without a proliferation of groups that don’t have a clear charge or timeline to complete their work. In one newspaper article about my anticipated tenure, the headline was, “Man Without a Plan.” I was proud of that headline.
I now joke that within a few weeks of my election, the legislature (not me) broke my pledge. As part of the State Bar’s 2011 fee bill (AB2764), the legislature required me to appoint the Governance in the Public Interest Task Force, charged with making “recommendations for enhancing the protection of the public and ensuring that protection of the public is the highest priority in the licensing, regulation and discipline of attorneys.” The legislature expressed its perception that recent decisions of the Bar board favored the interests of lawyers over their clients or the general public.
Per the bill, I appointed 11 board members, including three non-lawyers, to the task force, and sought the participation of six ex officio members. If the task force was unable to reach a consensus, the report was to contain both a majority and a dissenting (minority) report. The debates by the task force members during our 12 public meetings were cordial and respectful, even when we sharply disagreed, as well as intellectually interesting and challenging.
On May 11, the task force submitted the 77-page report and a 2,070-page supporting record to the Supreme Court and the other branches. Both the majority report, joined by seven task force members, and the minority report recommend that changes be made to the governance structure of the State Bar, including how its members are selected.
The majority proposal recommends retaining a 23-member board of six public members, three lawyers appointed by the Supreme Court, one lawyer member representing young lawyers, the president (who could be a lawyer or a non-lawyer), and 12 attorneys elected by their peers from newly configured districts. The majority proposal recommends other changes aimed at enhancing the Bar’s service to the public.
I joined the four-member minority report. We suggest sweeping changes to the board, including legislative amendments to the State Bar Act to reduce its size from 23 to 15. We recommend a board composed of six public members and nine lawyers who would be appointed to a three-year term by the Supreme Court. The Court, in turn, could appoint a merit screening committee to vet and interview the applicants and recommend at least three qualified candidates for each vacancy. All board members could apply for reappointment to one or more additional three-year terms. Our minority report sets forth the reasons for our recommendations.
Some lawyers might wonder why I, as a Bar president who benefited from the current system of lawyer elections, joined a minority report that seeks to abolish lawyer elections. I can sum it up in two words: qualifications and continuity.
The premise underlying our current system of lawyer elections is that any active Bar member whose principal office is located in the state is eligible and qualified to sit on the Bar board. If the lawyer has the energy to complete and submit a nominating petition, his or her name is placed on the ballot. When I read past nominating petitions, few of the candidates have any idea what the State Bar actually does. The principal mission of the State Bar is protection of the public, which means the operation of a discipline system that will cost some $50 million in general fund money this year. Yet few candidates express any interest, or possess any expertise, in the discipline system. Instead, they are elected by their lawyer peers who, if they read the candidate statements at all, vote for men and women who generally tell the lawyers what they want to hear ― “more civility among lawyers,” “I will work to lower your dues,” etc. While these may be laudable goals, they are subsidiary to the Bar’s primary function.
We currently have no method of screening the candidates to determine whether they are, in fact, qualified by knowledge or experience to sit on the board. That they are elected by their peers is a poor substitute for screening for qualifications. In recent years, fewer than 16 percent of all eligible lawyers vote in board elections.
I believe the best way to advance the interests of the public is to replace peer-elected lawyers with lawyers screened and appointed by the Supreme Court. I believe an all-appointed board, when addressing issues that implicate our public protection mission, would tend to better represent the interests of the public rather than the interests of lawyers in their constituent districts. When I hear complaints that I am advocating a result that flies in the face of democracy, I would agree, but only in this sense: We now have a system where the elites (lawyers) elect other elites (their fellow lawyers) to run an organization whose mission is to serve the public. It is a democracy in the same way that our country was a democracy 200 years ago, when only elite white landowners could vote, and state legislatures chose U.S. Senators who were supposed to act on behalf of all citizens. So, yes, what we have at the Bar now is a democracy, in the same sense that our country 200 years ago was a “democracy.”
Both the majority and minority reports recommend that we convert three or more elected lawyer-member seats to Supreme Court appointments. The task force did reach consensus that governance of the Bar in the public interest could benefit from having some Supreme Court-appointed lawyer members, who would be screened and qualified, and all board members would be able to apply for re-appointment.
The current governance of the Bar suffers from a lack of continuity on the board. This year, we will lose more than one-third of the board: four third-year lawyer members, two public members, one young lawyer and me. Because of this lack of continuity, the Bar suffers in at least three ways. First, it is difficult, if not impossible, to engage in long-range planning. The Bar board needs to be thinking about what the legal profession might look like in five or 10 years and plan for that future.
Second, every year we seat at least five new members, each with goals or objectives that might, or might not, be congruent with the Bar’s mission. In my experience, it takes about a year for a new board member to become familiar with the mission of the Bar, its various mandatory, regulatory and voluntary aspects, and to gain a firm grasp on what we do. In my four years on the board, we have revisited a number of the same issues, mostly because the new members are unaware that an earlier board had formed a task force or subcommittee to study the very same issue and had already submitted a report and recommendations. Every year, we elect a new president, who has his or her own pet project. The board and staff are directed to spend time and money on that project, rather than simply promoting the existing work of the Bar ― all of which, by the way, is extremely valuable, and includes such efforts as supporting legal services for the poor, lawyer competence and training, and promoting diversity in the legal profession.
Third, because we have new board members every year, the organization becomes staff-driven, not board-driven. I have been fortunate to work with many excellent senior executives. But this might not always be the case. We need a governance structure that ensures the Bar can thrive under good staff management, or bad.
The legislature has committed to review the task force report and consider its recommendations in connection with our pending fee bill. The Court, the legislature and the governor may or may not agree with the minority’s proposal, or may approve the majority proposal, or may adopt something in between. Indeed, late last month, amendments to the State Bar fee bill were proposed in the Senate that draw from both proposals in order to effectuate meaninful governance reform. I believe all the task force members would agree that this exercise has been useful for the board, the Bar and the other branches.
The Bar reflects many of my highest ideals: ensuring competence and ethics in the profession, as well as supporting access to justice, advancing diversity among lawyers and judges, and furthering the work of the sections and others in educating our fellow lawyers through programs and books. By joining the minority report, I believe that I am making a recommendation that will strengthen the Bar and its ability to carry out all its missions by populating a board of lawyers of the highest caliber, all of them with an eye toward our future.