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MCLE Self-Assessment Test

Three plans to reform bar governance
are on the table

By Nancy McCarthy
Staff Writer

Dueling proposals to reorganize the State Bar Board of Governors, ranging from shrinking the numbers to changing the selection process to adding more public members, will be under consideration early this month as a task force wrestles with a legislative mandate to enhance the bar’s public protection efforts.

Bill Hebert
Bill Hebert

President Bill Hebert recommended eliminating six of 17 lawyer seats on the board and appointment of attorney members by the Supreme Court, a change that would mean California lawyers would no longer elect other lawyers to regulate them. No seats would be reserved for constituent groups, such as young lawyers, and appointment of the public members by the governor and the legislature would remain unchanged.

Board members Jon Streeter of San Francisco and Angela Davis of Los Angeles floated a “hybrid” proposal to 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, four appointed by the governor, as they are now, and two would be named by the legislature. The president would be the 23rd member.

Wells Lyman
Wells Lyman

Wells Lyman, a board member from San Diego, suggested a 19-person board, including a president, one lawyer elected from each of the bar’s nine districts, and three additional public members, each appointed by the Supreme Court. Lyman, who has expressed concern that an all-appointed board would exclude lawyers who are not well-connected, said his plan directly addresses a perception that lawyers regulating lawyers is akin to the fox guarding the henhouse. “If attorneys controlling the governance of the State Bar are the problem,” he said, “then take away the control by attorneys.”

Jon Streeter
Jon Streeter

Currently, the board consists of 23 people — 15 lawyers, six public members, a young lawyer representative and the president. The lawyers are elected to a three-year term by other lawyers practicing within nine bar districts. Over the last six years, an average of 15.5 percent of eligible lawyers voted in each election. The young lawyer representative and the president serve a one-year term.

Both the Hebert and Streeter/Davis proposals include creation of a committee to vet board candidates and would amend the State Bar Act to make public protection the board’s highest priority, trumping any other interests the bar might have.

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.

Angela Davis
Angela Davis

A final plan must be submitted to the Supreme Court, the governor and the Senate and Assembly Judiciary committees by May 15. Some proposals require amendments to the California Rules of Court, the State Bar Act and bar rules.

Hebert’s proposal, unveiled weeks before the others, got mixed reviews from the task force.

Noting lawyers have “been in charge for 80 years and we could have done better,” Lyman said he could support fewer lawyer board members but expressed concern that an appointed, well-connected group would lead to less diversity. He said he likely would not have been appointed to the board.

He acknowledged that the board “is in a dicey situation . . . We are getting pushed mightily by the legislature to do something. If we don’t, they’ll do it for us.”

Dennis Mangers
Dennis Mangers

Dennis Mangers, a former Assembly member and the board’s newest public member, called Hebert’s proposal “a good start,” but said it may not be enough. “It may be what’s needed here may have to change more incrementally rather than all of a sudden,” he said, suggesting that the integrated bar ultimately might be divided in two. “I’m not sure you can be an integrated bar and actually have the public perceive you as devoted to public protection as your number one objective.”

Mangers said he’s open-minded about the number on the board as long as there are fewer members than at present. He doesn’t object to a majority of lawyers although “I think the proportion has been wildly skewed to date.” Mangers added that he’s comfortable with an appointed board.

The hybrid proposal would reconfigure the board’s current nine districts into five, based roughly on the boundaries of the six District Courts of Appeal. Minimum criteria for board membership would be established and all appointed members would be eligible for reappointment, permitting six years of service and greater continuity. Because involving the Supreme Court in the appointment process “provides greater insulation from politicized attacks, it is more protective of judicial independence than the proposed 100 percent appointive model,” the proposal notes.

It also would give non-lawyers greater influence over the bar’s regulatory functions by requiring that at least half the members of the two committees most involved in regulatory activities be public members.

None of the proposals address breaking up the integrated bar, a possibility that looms over the task force. Hebert opposes splitting the bar and Lyman said the connection to the bar many lawyers feel through activities such as pro bono work would be lost if the agency were divided into mandatory and voluntary entities. “That’s because they have a sense they are a member of an organization and not a licensee,” he explained.

Hebert said he left the number of public members intact because the government branches “have been satisfied with the number of appointments and the proportion of appointments.” And he favors a lawyer majority because they are equipped to deal with professional issues, such as rewriting the Rules of Professional Conduct.

An appointed board will help remove the perception that elected lawyers represent their legal constituency rather than the public, Hebert said. He also addressed a concern expressed at hearings that “if it ain’t broke, don’t fix it.” There’s no question, he said, that a board not beholden to its lawyer constituents would have passed a rule requiring malpractice insurance disclosure.