Beware of Self-Styled Consumer Advocates

Friday, February 4, 2011

Page 6

IN MY OPINION (Column)

Beware of Self-Styled Consumer Advocates

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Like the prefect of police in Casablanca, I was “shocked” to see Robert Fellmeth, the executive director of the Center for Public Interest Law at the University of San Diego School of Law, propose a complete restructure of the Board of Governors of the California State Bar. I speak with as much sincerity as Claude Rains, as police prefect in Casablanca spoke when he was “shocked” at the discovery that there was gambling going on in Rick’s Bar. Mr. Fellmeth, of course, seeks to completely restructure the State Bar just as he had done with the disciplinary system a quarter of a century ago, in his then-position as State Bar discipline monitor. No wonder he now publicly proclaims that our present discipline system is “among the best in the country.”

Not so fast, Mr. Fellmeth. I always look with caution at those who consider themselves self-styled consumer advocates. In the 1980s, there had been some newspaper-generated criticism of the State Bar’s disciplinary system. The criticism was directed at certain State Bar officials for lack of attention, in other words, negligence. There were no allegations of coddling miscreants or criminal misconduct. The remedy sought and accomplished was to change the old Disciplinary Board to the State Bar Court. Then, enter Robert Fellmeth in the legislatively-created position of State Bar discipline monitor. What followed was a sledgehammer approach which could have been handled in a more responsible manner. There was no need to throw out the baby with the bath water.

The changes came in rapid order. The volunteer system was completely abandoned, both on the prosecutorial and decision-making (judicial) levels. Formality was instituted. The Office of Trial Counsel was established. What came about was a new bureaucracy within a bureaucracy. The actual cost to the State Bar was staggering. Compare your State Bar dues with what they used to be.

The volunteer system served a valuable purpose. For more than 50 years, it instilled an esprit de corps in the legal profession, in addition to dispensing true justice. It also, in no small measure, served to create a career in public service. Was it effective? Yes. There is no record of any miscarriage of justice. The bad apples were disciplined and removed before the abandonment of the volunteer system, as well as after.

Now Mr. Fellmeth is advocating for equally radical changes. Reconstruct the anatomy of constituencies of governors in favor of Supreme Court appointments. Eliminate the election of Bar governors and change their terms of service. Change the regulatory structure of the integrated Bar to more clearly fulfill its purpose of public protection and service. Screening of judicial candidates, discipline, admission regulations, proposed legislative changes, and law school accreditations are but a very minor list of concerns to the Board of Governors. The fact that there is only marginal voting in the election of Governors is, of course, a matter of public concern. It would not be solved by the recommendations of Mr. Fellmeth. The present system is not perfect, but it is good and can be corrected from within, not with a massive restructuring.

Yes, the integrated State Bar is not a trade organization in the sense of local bar associations. But over the years, it has served and accomplished a valuable service to the public and lawyer population.