No Rational Basis for State Bar’s Use of Public Members

Thursday, March 31, 2011

Page 6

IN MY OPINION (Column)

No Rational Basis for State Bar’s Use of Public Members

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.)

Probably more California lawyers are familiar with and remember the rule in Shelley’s case of the Rule against Perpetuities than know the composition, powers, or selection process of the Board of Governors of the State Bar. Hence, the legislative mandate included in last year’s State Bar dues bill to propose changes in the governing structure of the State Bar will engender as much interest as a primary campaign for dog catcher in a small mid-western township.

Lawyers are not ignorant. Just the opposite is true. They are hard-working and educated. They are honorable and well-motivated. Like many other Americans, they suffer from an over-regulated industry-wide governance. Hence, they are aware and react to being treated as enemies. That is why a letter from the State Bar, if it is not a bill, is likely a complaint.

I trust a lawyer more than I trust a non-lawyer. Of course there are bad apples, but considering the nature of the practice of law and the fact that mostly one contacts a lawyer only when one has problems, the legitimate complaint are rare. For example, we in California have one of the toughest Bar examinations in the country. Yet there has not been one credible complaint alleging corruption.

Also, note that California’s attorneys have a far better record for honor, honesty and integrity than members of Congress and those who lobby in retirement from Congress. Our California judiciary is corruption-proof except for some minor exceptions. All these reasons why I don’t like lawyer jokes. They are as offensive as ethnic or racial jokes.

If the legislative mandate for changes in the governing structure of the State Bar were directed at me, there are four changes which I would suggest. The chances of these changes to be enacted are as remote as my being awarded the Heisman trophy or an Oscar, or both. My suggestions are only slightly less outrageous than what has been presented by the present Bar leadership, but far more logical.

The present Bar membership has suggested major changes in the selection process of State Bar Governors, changes in the length of terms of office, etc. The exact proposed changes have no been finalized. Is it not foolish to repair a system that is not really broken? Is it bright to sacrifice an elective process (for the Bar Governors) in favor of an appointment process by the Supreme Court?

Here are my suggestions:

Abolish the stupid rule that the Legislature has to approve the dues bill for attorneys. Year after year, there has been a fight to persuade the Legislature to approve the amount lawyers should be charged for the privilege to be lawyers. Is it any business of the Legislature?

Re-calculate the obligations of the State Bar with respect to its obligations. Yes, the lawyers of California should have to pay through their dues even those expenses which are marginally related to Bar or lawyer activities. Not so, for example, for the support and maintenance of the JNE Commission—the commission which evaluates the judicial appointments contemplated by the governors of California. The commission meets frequently and is composed of lawyers and non-lawyers who meet, at State Bar expense, in Los Angeles and San Francisco. That is properly a state function, not a benefit to the lawyers or the State Bar.

Discipline had been well and conscientiously administered by the old Disciplinary Board and the predecessor to the present State Bar court. The present so-called Professional State Bar Court is only a bureauocracy based upon another bureauocracy. The required formalities, i.e. black robes and detailed decisions in the face of new and more onerous regulations, are not needed. The volunteer system was perfectly adequate. It also specifically, by engaging volunteers, encouraged Bar participation and encouraged pride by attorneys in their organization. Lastly, is there any legitimate reason why the chief trial counsel (the chief prosecutor) should be nominated by the Legislature?

The existence of so-called public members on the Board of Governors, in the disciplinary system and even on the Committee of Bar Examiners makes little sense. The name “public member” is a complete misnomer. What it meant is that these parties are non-attorneys, or more precisely people who have not successfully passed the Bar examination. There was one public member of the Board of Governors a few years ago who had graduated from law school but never passed the Bar examination.

In the present state governor’s first term of office, he appointed more than six public members as governors who were dedicated and publicly proclaimed attorney haters. The operation of the State Bar practically came to a stalemate. These public members did not distinguish themselves prior to their appointment or thereafter. Fortunately, subsequent governors exercised much more discretion in their appointment process.

At present, public member governors are appointed as follows: four by the governor and one each by the Senate Committee on Rules and the speaker of the Assembly. It is difficult to find a more politicized appointment process not related to any rational purpose. Public members had been appointed to the State Bar Court and surprisingly, they were more lenient in their recommended disposition of discipline than lawyer members. Most outrageous of all, there are now public members on the Committee of Bar Examiners. Conclusion: the utilization of non-lawyers is not based on any rational basis.