Major Changes in the State Bar of California
The California State Bar was created by the California Legislature in 1927 when they enacted the State Bar Act.1 The State Bar of California is a public corporation (not an association), formed to fix qualifications for the admission to practice, adopt rules of professional conduct, and conduct disciplinary proceedings (all with the approval of the Supreme Court). The State Bar was also to aid in the administration of justice. The Bar “may aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice, including, but not by way of limitation, all matters that may advance the professional interests of the members of the State Bar and such matters as concern the relations of the State Bar with the public.” (Business and Professions Code,Section 6031(a))
In 1960, the State Bar was added to the State Constitution, and every person admitted and licensed to practice law was required to be a member of the State Bar except while holding office as a judge of a court of record.
In 1991, the Board of Governors set out the mission and goals of the State Bar that seem very much like what we would expect: to “preserve and improve our justice system in order to assure a free and just society under law.” They set forth goals of equal access to the legal system; assuring that every lawyer would be ethical, competent and professional; protecting the public by regulation of lawyer conduct; improving the administration of justice; providing information to the public about lawyers and the legal system; assuring full and equal opportunity of all to get into, and advance in, the legal profession, maximizing opportunity to be a part of the governance of the legal profession to reflect the full diversity of the profession; providing benefits and programs to promote professional growth and enhance the quality of life of the members; and assuring effective management of the State Bar. The 1991 mission statement was reaffirmed in 1997.
The mission statement was again repeated in 2001. At that time, a “vision statement” was adopted. The ideals in the vision statement included that the public would have greater respect for the lawyers, the profession, and the State Bar; there would be better access to legal services; lawyers would be better prepared; and the discipline system “will protect the public in a fair and even-handed way and the public will be protected through a comprehensive system of malpractice insurance.” The legal system would reflect the diversity of the State; and the State Bar would demonstrate “high levels of credibility” and “will enjoy excellent and productive working relationships with the Supreme Court, the Judicial Council of California, the Legislature, the Governor, and all members of the State Bar family.” Unfortunately, this was not to come about, and continuing lack of credibility and poor working relationships with the Legislature, the Governor, and members led to mistrust and division, lack of authorization/ adoption of a fee bill, and the eventual reduction of the State Bar to a public protection agency.
The (last one ever) State Bar President, Michael Colantuono, during his speech after taking the oath of office on September 7, 2017, said, “We are no longer the leading advocate for the legal profession in California. We are no longer a professional association, or as is typically called in Sacramento, a trade association. . . . We are a public agency that exists to regulate the legal services industry for the benefit of the people of California. We are a public protection agency.” These changes took place over the last 8-10 years.
In 2008, the Board adopted a new mission statement, “to ensure that the people of California are served . . . consistent with the highest standards of professional competence, care, and ethical conduct . . . and to contribute generally to the science of jurisprudence and the administration of justice to the extent and in a manner consistent with the First Amendment rights of its members.” Focus on “public protection” (from lawyers) and the beginning of the end was set in motion. The “vision statement” is somewhat telling. The Board no longer mentioned high levels of credibility of the State Bar or an excellent and productive working relationship with the Legislature, the governor, and its members. Instead, they had a goal of a “productive working relationship” with “all parties with an interest in the legal profession and the administration of justice in the State of California.”
During this time period, a variety of situations arose that reflected poorly on staff credibility and management of the State Bar. Misappropriation of money that went undetected for a period, misrepresentation of needs that would support the amount of dues requested, and other acts and omissions occurred that made legislators seriously question and attack the credibility of the State Bar. Questions and criticisms became more intense and more often. The State Bar was on its heels in trying to defend itself, including attempts to justify numbers regarding backed up disciplinary matters and prosecutions, which numbers did not seem to make any sense or reflect reality. These problems have continued through the very recent past even though there have been several changes in the Executive Director position of the State Bar.
As late as 2016, the leaders of the State Bar decided that they would simply take what they determined as “excess” (accumulated) funds of the Attorney Diversion and Assistance Program (a program created by statute and required to be funded by a dedicated $10 per active member from our dues each year). When the Oversight Committee of the Attorney Diversion and Assistance Program complained, legislative counsel reviewed the matter and advised the State Bar that they had to return the money. The State Bar did so in 2017, only after Legislative Counsel Opinions 1610845 and 1729407 were issued. This involved well over one million dollars. As an aside, even though the State Bar was advised that they could not do this and that said funds were dedicated to be used by the Attorney Diversion and Assistance Program, Senate Bill 36, the 2017 “Dues Bill” and enabling statute to split the Bar, contains a special provision that indicates that the State Bar Clients’ Security Fund will be enabled to take any monies not used by the Attorney Diversion and Assistance Program (Lawyer Assistance Program) each year. In other words, the State Bar quietly added into their dues bill this enabling legislation and the ability to do what legislative counsel told them was wrongful just months before. Although not referring to the LAP, President Colantuono said, “We will keep our eye on the client security trust fund to make sure it is adequately funded to protect Californians.”
In a Daily Journal article published November 6, 2017, reflecting on labor issues and executive pay, the author lays out the reasons for the changes: Assemblyman David “Chiu, D-San Francisco, is a member of the Assembly Judiciary Committee. He said he was pleased that after a series of well-documented scandals, the bar agreed this year to support a number of changes in its funding bill, including the separation of the agency’s specialty practice groups into a private nonprofit.”
In the fall of 2017, the State Bar Fee Bill (Senate Bill 36) was signed by the governor. This law separated the State Bar’s sections from the State Bar, although the State Bar will retain administrative and monetary control/oversight through collection and distribution of money. The State Bar will charge the sections for their services.
The State Bar is also expected to ask you/us each to pay for re-fingerprinting (finally catching up with a 1989 law requiring retention of fingerprints to promote notice to the Bar of any subsequent arrest), even though each of us had to submit fingerprints when we were admitted. The State Bar doesn’t want to be stuck for the expected $15.5 million cost to re-fingerprint everybody. (They have continually discarded all the fingerprints, except some hard-copy cards submitted within the last 3 years, despite the 1989 law.) Many attorneys are objecting. CPAs recently fought similar attempts and won in State Court. Management, labor, and pay disputes are also in issue, with some staffers (over a dozen) paid more than the governor and do not always work 40 hour weeks. Currently, the Bar announced a need to raise dues and tap into reserves to the tune of an additional $22 million this year. This is also the first year the State Bar has not had an annual convention.
In November of 2016, the California Supreme Court ordered a special assessment on attorneys to fund the State Bar (in lieu of a dues bill approved by the Legislature) in order to fund the discipline system. This was to include not only funding of the prosecution of lawyers, but also the Commission on Judicial Nominees Evaluation and the Center to Access to Justice and the California Commission on Access to Justice (even though these do not appear to have disciplinary functions). The Chief Justice said, “The Court acknowledges the State Bar’s highest priority is protection of the public, and that this objective may be achieved not only through its discipline system, but also through the State Bar’s administration of these types of programs. . .” (reflecting on “access to justice” and diversity issues).
At a 2017 planning meeting, the Board of Trustees adopted the position of the Chief Justice. The mission of the State Bar is now found in Business and Professions Code section 6001.1, “Protection of the public shall be the highest priority . . . whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.”
Of course, over the last ten years or so, the elected representation on the State Bar Board of Governors, later the State Bar Board of Trustees, has eroded. The first move was to reduce the number of members of the Board, which included a reduction in the number of elected members of the Board. For the first time in its history, the number of appointed members was greater than the number of elected members. This year (also in SB 36), the Board of Trustees has become a fully appointed body. None are elected. The Board will include five attorney appointments by the Supreme Court, one by the Senate, one by the Assembly, and six members of the public appointed by the Governor. There are a total of thirteen members (seven attorneys and six members of the public). Each of the members of the Board of Trustees will have a four year term. There will no longer be a president of the Board; but the Supreme Court will appoint a chair and a vice chair for the Board of Trustees. No elections will take place. Any dissenting or independent voices are likely to be an oddity.
As you can see, the State Bar has evolved from being the leading advocate and educator for the legal profession, encouraging and advancing standards in the profession through education, support and practice methods, and from being a professional association (professionals helping other professionals become better at their jobs) to a consumer protection agency generally restricted to the functions of licensing, regulation, and discipline of attorneys. (Including ethics, competence, and greater access to the legal system).
The State Bar also will undertake ongoing comprehensive studies of the California Bar exam and will make recommendations. Recently, after initial study, the Supreme Court has declined to change the pass score required, even though many law schools have requested changes, and the argument has been made that the higher required pass scores reduce minority admissions. This year was the first time the exam was limited to two days.
Some ideas currently being promoted include more resources auditing lawyers in terms of continuing legal education. “If you can’t get your paperwork in on time to keep your license to practice law, how skillfully can you assert your clients’ interests?” (President Colantuono) Auditing client trust accounts is also being promoted by the appointees to the Board of Trustees. “We don’t have the authority for that yet, but we are working on it.” (President Colantuono) Auditing of CLE providers will also be tightened up, as will attempts to protect Californians from the unauthorized practice of law. Viewing of the Bar’s website seems to make it increasingly easy “to file a complaint against your lawyer.” The State Bar seems to be trying hard to find things to prosecute. The Bar recently went after an attorney on a civil collections matter (to try to impose discipline) for not paying a private court reporter for transcript costs (that he claims he did not even order).
The erosion of credibility, movement to an all-appointed Board of Trustees (with no elections even within the Board), continuing management issues, and defensive and defective responses to situations of their own making are disappointing and disheartening. We are (or should be, must be) better than that. With the split of Bar functions, and difficulties on the horizon in regard to support for sections and specialty areas, perhaps members will be encouraged to join local bar associations and support the great things done, and services provided, locally. I hope so.
On a more positive note, the commitment to diversity remains an important part of the State Bar mission and the leadership of the Supreme Court. The State Bar is moving to develop a mentoring program to help young diverse lawyers flourish in careers and a Bar passage program from all who might wish to benefit from it. Consideration is being given to require a certain initial amount of MCLE of new lawyers relating to how to practice law, office management, and staying out of trouble.
Whatever your view, changes are aplenty . . . and more are coming. If you get a chance, make your own contribution to the betterment of our profession. Let’s go out and do some good.
Reprinted from Riverside Lawyer Magazine December 2017, Volume 67 Number 11