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MCLE Self-Assessment Test

State Bar trustees review organization of other bars

By Laura Ernde
Staff Writer

The State Bar’s Governance in the Public Interest Task Force last month heard the pros and cons of how other State Bars and regulatory agencies are organized and governed.

The meeting was the first of five in which the task force will explore changes to the bar to enhance public protection and ensure that protection of the public is the highest priority in the licensing, regulation and discipline of attorneys.

“California has long been considered a national leader in the attorney discipline arena,” Executive Director Elizabeth Rindskopf Parker said. “Even so, we can learn by taking a deep and broad look at our counterparts.”

Among the weighty questions the task force is considering is whether the unified bar structure best serves the public interest when there are real or perceived conflicts between the bar’s dual missions of protecting the public from bad lawyers and enhancing the legal profession.

It’s difficult to compare California with other State Bars because of its size and the large number of activities it supports, Parker said. In addition to its core functions – admission and discipline of lawyers – the State Bar supports dozens of committees and commissions working to enhance the administration of justice as well as 16 self-funded voluntary sections.

One feature that makes California unique is its oversight by the state Legislature, Washington State Bar Association Executive Director Paula Littlewood told the task force. Most of the country’s 33 unified bars get funding authority through their state Supreme Court or governing board.

In California, the Legislature created the unified bar with the State Bar Act of 1927. However, the State Bar is part of the judicial branch, and the Legislature provides oversight by setting the amount of mandatory fees collected annually from attorneys.

In contrast, Washington’s bar is overseen only by its Supreme Court. Historically, lawyers became a self-regulated profession because of the need to remain independent from the legislative branch and to guard against over- or under-reaching by the government, Littlewood said.

“Most lawyers have no idea that we are a self-regulated profession, and they have no idea why,” she said.

Washington is also re-examining all of its activities in light of a recent U.S. Supreme Court decision, North Carolina State Board of Dental Examiners v. FTC, which raises antitrust issues for bar organizations. The decision said the dental board’s effort to put teeth whiteners out of business was anti-competitive because the board was made up of a majority of market participants and was not subject to active supervision by the state.

The task force also heard from:

  • Yvonne Choong, vice president for the Center for Health Policy at the California Medical Association (CMA), a trade association for California’s 140,000 physicians. The medical profession has had separate licensing and trade association organizations since the beginning of the century. The arrangement was formalized by the state Legislature in 1975. One advantage of being independent is that CMA can lobby on broader health policy issues. But since membership is not mandatory, fundraising can be a challenge, she said.
  • San Diego County Bar Association Executive Director Ellen Miller-Sharp. Noting she was not speaking in her official capacity, Miller-Sharp said it’s up to the task force to decide what governance structure would best protect the public. From her perspective as a longtime bar leader, she said the State Bar can take a more active role in leading the legal profession than local bar organizations because of its “powerful convening authority.”
  • California Insurance Commissioner Dave Jones. Previously appointed by the governor, the insurance commissioner has been chosen by a statewide election since 1988. It’s the largest consumer protection agency in the state. Jones, a lawyer, praised the State Bar’s work to assist organizations and individuals that provide legal services to the poor.
  • California Commission on Judicial Performance Director-Chief Counsel Victoria Henley. She described the important role the commission’s public members play in its mission of disciplining judges. Non-lawyers bring a valuable perspective and improve public confidence in the system, she said.
  • State Bar of Wisconsin Executive Director George Brown. As in California, bar membership is mandatory in Wisconsin. However, the bar functions much like a voluntary bar and its discipline and admissions functions are handled separately by the Wisconsin Supreme Court’s Office of Lawyer Regulation.

The task force also heard from Donna Parkinson and Perry Segal, members of the State Bar’s voluntary Sections, which are studying the advantages and disadvantages of remaining affiliated with the State Bar. In recent years, the sections have seen an increase in the amount of overhead they must pay the bar in order to remain self-funded.

Also, new open meetings rules going into effect April 1 make it challenging for the far-flung volunteers across the state to have conference calls and use email to conduct their business, which largely consists of planning attorney educational events. The new rules were implemented ahead of schedule by the Board of Trustees, which was already operating under similar open meetings rules.

The task force will hold two public hearings – April 4 in San Francisco and April 25 in Los Angeles. Two additional working meetings will be scheduled before the task force issues a report to the Board of Trustees by mid-2016. The report will then go to the Supreme Court, the Legislature and the governor.