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MCLE Self-Assessment Test

Elect or appoint bar board members?
For some, that is the question.

By Nancy McCarthy
Staff Writer

After nearly a dozen hearings, the assignment of deciding how to govern the State Bar has boiled down to two questions: Who should be on the board of governors and how should they get there? A 16-member task force is starkly divided over the size of the board, as well as whether the members should be appointed or elected. 

And at its 10th meeting last month in Sacramento, a member of the board of governors questioned whether the governance panel's focus is misplaced. “The fundamental question has not been answered,” said Clark Gehlbach, a deputy district attorney from Roseville. “I don’t see how any of the changes being proposed go to enhancing public protection. I don’t get the connection between redoing our structure and the idea that we are protecting the public from errant attorneys.”

Gehlbach, who is not on the task force, said he feared “I’m talking to a train that’s left the station.”

Although “public protection” is the task force’s mantra, there are other divisions as well. Some members favor bold changes, others support incremental steps and a couple prefer the status quo. Some back appointments by the Supreme Court; others worry such a system would enhance an old-boys'-network perception. Public members in particular want the State Bar split into a regulatory agency and a voluntary trade association, while a former executive director suggested advocacy groups sometimes lobby against the public interest.

In the end, the group decided to draft three proposals:

  • Shrink the board to fewer lawyers, all appointed by the Supreme Court, and six public members.
  • Leave the board with its current 23 members, but 13 of 16 lawyers would be elected and three would be appointed by the Supreme Court. The number of public members would remain at six and the 23rd member would be the president.
  • Retain the status quo, with 17 elected lawyers and six public members appointed by the governor, Assembly speaker and Senate rules committee.

After the meeting, however, the status quo concept was dropped from consideration.

The task force will further debate bar governance at an April 13 meeting and a final plan must be submitted to the Supreme Court, the governor and the Senate and Assembly Judiciary committees by May 15.

The governance task force was legislatively mandated as part of the 2011 fee bill and is required to make recommendations “for enhancing and ensuring that public protection is the highest priority in the licensing, regulation and discipline of attorneys.” Lawmakers acted after discerning a bias in several actions prior boards took, including a liability insurance disclosure requirement that opponents considered watered-down and a Find Legal Help feature on the website that doesn’t permit searches by practice.

Dennis Mangers, a former assemblyman and the newest public member, said there is no justification for the bar board to be different from other state oversight boards that are both smaller and appointed. He recommended a board of nine lawyers, appointed by the Supreme Court, and six politically appointed public members. “Otherwise we continue to create the suggestion that we are regulating ourselves,” Mangers said. “We could in one fell swoop dispel that notion.”

He said the California Board of Accountancy has 15 appointed members, seven professional. The state pharmacy board consists of 13 appointed members, with seven professionals and the medical board has 15 members, all appointed, with a ratio of eight doctors to seven public members. “The suggestion that this single (legal) profession is so unique that it can only be properly governed by lawyers is just not working for me,” Mangers said.

Jeannine English, another public member, agreed that the State Bar is “the only regulatory body that is electing the regulators.” It’s a system, she said, that is “counter to any good principles of oversight.”

But Jon Streeter, a board member from San Francisco, was equally determined that the majority of the board – 12 of 16 – remain elected lawyers. “An appointed board leads to the appearance of ‘old boy syndrome,’” Streeter said. “To decrease the number of lawyers around the table will make us less able to do business.” He and others said lawyers possess expertise in some areas, such as the Rules of Professional Competence, that is necessary for effective governance.

Streeter and board member Angela Davis of Los Angeles proposed a 21-point reform package that also includes greater communication with lawyers and the legislature, greater transparency, minimum qualifications for board members and creation of an executive committee that would assume some of the president’s authority.

The divisions in the group became clear when Lowell Carruth, a representative from Fresno, said he favors leaving everything the way it is. Acknowledging “the risk of being stoned,” he said, “I know people say it was better in the old days, but it was. People were more civil. Lawyers were more civil. Now it’s a war. That’s the problem, not whether we elect or appoint members of the board.”