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STATE OF THE STATE BAR

A lot of things are changing in the California State Bar!

I am sure that you are very aware that the State Bar split into two entities as of a couple of years ago, with the actual State Bar assuming the exclusive role of a public protection agency, focusing on attorney admissions and discipline.  The California Lawyers Association, formed at that time to undertake the balance of the State Bar’s activities, is comprised of section members and is a completely voluntary body.

While the California Lawyers Association has a great many benefits available to attorneys and should be explored, I will restrict the comments here to some of the recent evolution of the State Bar itself.

The State Bar’s mission is “to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys.”  The State Bar describes itself as, “an agency focused on public protection, regulating the legal profession, and promoting access to justice.”

There are now more than 250,000 licensed lawyers in California; however, the State Bar struggles to provide effective access to justice and effective legal assistance to our citizens.  A lot of energy and time are spent focusing on “improvements” that will provide better and more effective access to justice.

On the positive side, the State Bar seems to be recognizing (finally) that better attorney “wellness” translates into better client protection.  In other words, support for attorneys in areas of recovery from chemical dependency and/or emotional upheaval, rather than discipline, will promote increased client protection and better services.  There are several things the State Bar is doing to implement that approach: self-assessment models, available counseling, preventative education, support for the LAP and The Other Bar, and a true diversion program are in the works.

One of the approaches to support increased access to legal services involves “provisional licensure”.  If you are not familiar with that, what it means, roughly, is that anyone who has graduated law school in 2020, or thereafter, may apply for provisional licensure to do everything a licensed attorney can do other than handle the IOLTA accounts (trust accounts).  For those who graduated in 2020, whether or not they have taken the bar examination, they may apply for and receive provisional licensure.  The program started in earnest on November 17, 2020 (and terminates June 1, 2022).  When I asked a recent graduate what he can do under the provisional licensure, he said, “I can do anything a licensed attorney can do, including handling of a murder trial by myself, as long as I have a supervising attorney named.”   The supervising attorney does not have to be in the trial or in the same room, according to him.  Not only that, but he can have his own clients.  He must simply have a supervising attorney and must notify the client of his provisional licensure.

This particular graduate took the bar exam this year, as well.  He described it as the first bar exam completely online.  It was 2 days, with the first day being 5 essays and the second day comprised of 100 multiple choice questions and a 90 minute performance examination.  He told me he heard there was a “big data breach” that the Bar is dealing with, but he did not suffer any consequences as a result, rumor is that California modified the National Commission software, and a glitch caused delays and problems in the performance section.  He will not know the results of the exam until January or February, 2021.

The State Bar has also appointed a “Blue Ribbon Commission on the Future of the Bar Exam” to explore possible changes and whether to adopt alternative or additional testing or tools through collaboration with the National Conference of Bar Examiners in developing recommendations for a Uniform Bar Exam (UBE).  This will include data examining pass rates of applicants of color and exploration of other issues “to insure that the exam is an effective tool for determining whether applicants are prepared to practice law ethically and competently.”  That group has its final report due in January of 2022.

As a result of several task force studies, the Bar is considering promoting loan forgiveness programs, removing “obstacles to diverse attorneys’ entry into, retention and advancement in the legal profession”, expanding the number of hours required in elimination of bias classes for MCLE, and identifying “ways that diversity and inclusion principles can be institutionalized in bar exam development and grading.”  Many of these ideas are to be evaluated through a report to the Board of Trustees due by December 31, 2020.

What would have been described as radical changes are also being considered in the area of fee sharing with non-lawyers. “To promote access through innovation of legal services”, expect possible changes in lawyer rules and regulations, lawyer advertising and solicitation rules, lawyer referral service statutes and rules, attorney fee sharing with non-lawyers, and delivery of services by firms or groups that may be co-owned by lawyers and non-lawyers.

The State Bar Board of Trustees, in addition to all that is described above, has put together a California Paraprofessional Program Working Group, with the idea that, “An appropriately regulated paraprofessionals program is an important component of the solution to the access to legal services crisis in California by expanding the pool of available and affordable legal service providers.”  Even though the idea will be to provide increased access to legal services through people who are less educated and less qualified than lawyers, the State Bar wants to develop some sort of licensure/certification program to ensure public protection while increasing access to legal services.  They will consider different pathways for licensure, including academic or experiential qualifications.  Areas that they are considering as appropriate for this type of licensure would include immigration, legal document assistance, unlawful detainer, and the like.  Paraprofessionals would be permitted to perform these tasks, apparently without supervision of any lawyer.  The parameters of the practice are not clear as yet; however, this will certainly require changes to statutes involving the unauthorized practice of law and the Rules of Professional Conduct.

I hope you find this little article informative; and I hope you will go out and be of service to your community and to the legal profession.  Let’s go out and do some good.

James Heiting

The only past President of the State Bar of California ever elected from the Inland Empire, James Heiting handles civil litigation matters throughout California, recovering over $400 million for clients, dealing with wrongful death, serious injury, professional malpractice and transportation accidents. Also past President of Riverside’s County Bar, his firm has served the Inland Empire for over 30 years. View Attorney James Otto Heiting's Attorney Bio Here.

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