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MCLE Self-Assessment Test

Panel hears no shortage of opinions on
how to reform the State Bar

By Nancy McCarthy
Staff Writer

The State Bar should be governed by a board of 17 — nine lawyers appointed by the Supreme Court and eight publicly appointed members. All should serve four-year terms. And the bar’s current “integrated” structure, combining regulatory and trade association functions, raises serious ethical issues and needs reform.

Or . . .

The State Bar should continue to be governed by a lawyer-dominated board with some public members. Candidates could be vetted to insure adequate qualifications, but the appointment power of political entities is unwelcome. The integrated status should be retained as the best structure to oversee public protection.

Or . . .

The bar should be independent of any state agency. To avoid the possibility of unintended consequences, no changes to the agency’s structure or mandate should be adopted until data is collected to determine whether the bar is fulfilling its various functions.

These suggestions and dozens of others are under consideration by a legislatively mandated task force appointed to recommend improvements to the bar’s public protection efforts. Two hearings last month and a survey of 20,000 bar members drew responses that ran the gamut and addressed issues ranging from what the board of governors should be called to whether the bar violates open meeting laws to the role of the Supreme Court. As part of the 2011 dues authorization bill, the 17-member Government in the Public Interest Task Force is required to submit a report to the Supreme Court, the governor and the Senate and Assembly judiciary committees by May 15.

Robert Fellmeth
Robert Fellmeth

Consumer advocate Robert Fellmeth, who chairs the Center for Public Interest Law at the University of San Diego Law School, focused much of his attention on the bar’s hybrid nature, which he characterized as the “elephant in the room.” A structure that combines traditional police power functions — admissions, discipline and formulating rules of professional conduct — with functions that traditionally fall within the work of a trade association — public education, litigation and political activities — “raises profound ethical issues,” Fellmeth said. No other occupational licensing agency in California has an integrated structure; all exist solely as licensing bodies with no trade association functions.

“It’s not just apples and oranges,” Fellmeth told the task force, comparing regulatory and trade association functions. “Apples and oranges, you can make a fruit salad. This is tomato soup and what are those orange slices doing in my tomato soup? They don’t work. It’s not a good dish.”

Fellmeth, who served as the bar’s discipline monitor more than 20 years ago and helped fashion reforms to the discipline system, said the bar’s hybrid structure is what caught the legislature’s attention and long ago was addressed by the U.S. Supreme Court in the 1990 Keller v. State Bar ruling that restricts bar activities in areas not related to regulating lawyers or improving the quality of legal services. He urged an end to the integrated bar, with trade association functions moved to a voluntary group, funded by voluntary members.

But his recommendation raised questions among some task force members. San Francisco attorney Jon Streeter asked if separating the bar’s regulatory work “would be more effective in promoting access to justice.” And Wells Lyman, a governor from San Diego, expressed concern that a statewide voluntary bar association, with perhaps thousands of members, might have political influence “that could be used for selfish purposes.”

Fellmeth argued that a two-part structure would make the bar more effective than it is now, with both entities working to protect the public and increase access to justice. “I think if you have two of them, they’ll be doing it all the better.”

But when he expressed annoyance with the word “integrated” and insisted on calling the bar a cartel, Streeter objected. “They are words and they get in the way of the argument here,” he said. “It’s one thing to throw around colorful words, but I’m trying to press you on fundamental principles and most importantly on unintended consequences.”

Los Angeles County Bar Association President Alan Steinbrecher, voicing his bar’s support for the State Bar’s public protection efforts, said LACBA favors relatively minor changes to bar governance, and any reforms should be beneficial. “We urge caution in making changes since they could have unintended consequences that could result in less effective oversight,” he said. “The criticisms we have heard do not seem to warrant any changes of themselves.”

“Why fix something if it’s not broken?” added Victor Acevedo, president of the Mexican American Bar Association of Los Angeles County.

Despite a mandate that the task force develop ways for the bar to improve public protection, its efforts seem focused on the board of governors — how many members should it have, how many lawyers, how many non-lawyers, and how should they be chosen. A survey sent to 10,000 randomly selected attorneys sought answers to eight questions — six about the board.

But Acevedo and Michael Levy, president of the Sacramento County Bar Association, said the task force is working backwards. Changing the institutional structure of an organization as big as the bar “should not begin with asking these kinds of questions,” Acevedo said. Instead, the bar should collect data about its functions and determine whether it’s operating effectively.

Levy said the panel should first identify the problems and then decide how to correct them, adding that the statute that required creation of the task force contains assumptions that may or may not be correct. “The basis for criticism should be documented,” he said in written testimony. “ . . . The task force should — indeed, must — engage in a meaningful problem identification process before purporting to propose solutions.”

Questions about the composition of the board of governors are premature, he added, without an examination of the current system “and how and under what circumstances it is not serving the public interest.”

Nevertheless, there was plenty of input about the board, which currently consists of 23 members — 15 lawyers elected from nine geographic bar districts, one lawyer elected by the young lawyer organization and six non-lawyers appointed by the governor, the Senate rules committee and the Speaker of the Assembly. Their terms are three years. The board elects the president, its 23rd member, for a one-year term.

Fellmeth, who favors the term “board of trustees,” recommended 17 members with staggered four-year terms, nine appointed by the Supreme Court and eight appointed by public entities. The president should serve for two years. Local bar representatives generally favor the status quo, with some support for a formalized vetting system or a minimum of 10 years in practice. Bar representatives expressed concerns about a politicized appointment process that several people said would boil down to “who you know or how you are known.” They left no doubt they want non-lawyers to make up a minority of the board.

At the opposite end was HALT (Help Abolish Legal Tyranny), a national legal reform group. It recommended a board of at least 12 non-lawyers and 11 attorneys and said the bar should have no role in selecting board members. Instead, the Supreme Court should solicit nominations from the general public, especially clients.

Artesia attorney Robert Suhajda wants the bar to sue Legal Zoom to stop it from practicing law.

And Rochelle Gelt, a member of the public who complained about lawyers involved in her family law case, said disbarred Los Angeles lawyer Richard Fine should be president of the bar. An antitrust and taxpayer advocate, Fine spent a year and a half behind bars on a contempt charge, becoming a cause célèbre among his supporters. Said Gelt, “He is your man, like it or not.”