Some Big Bar Questions May Get Lost in Coming Election Fervor

Tuesday, October 18, 2011

Page 7

IN MY OPINION (Column)

Some Big Bar Questions May Get Lost in Coming Election Fervor

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.)

As we prepare for next year’s quadrennial political spectacle, it is unlikely that the rhetorical question will or even can be asked concerning the State Bar of California: Is it better off, or in better shape than it had been four years before? The answer is a resounding no. The last blow was struck in early October of this year when the Governor signed a bill passed by the legislature which substantially altered what good had been left by three prior dramatic changes.

Change number one was the advent of public members in the early seventies on the Board of Governors, in the disciplinary system and various committees such as the Committee of Bar Examiners. Even the term “public member” is a misnomer. What is meant is that he or she is not a licensed attorney. A law graduate who had not passed the Bar exam qualified as a public member and was seated on the Board of Governors. The notion that lawyers were too soft in the disciplinary system was completely rebutted by the facts and the inclusion of non-lawyers on the Committee of Bar Examiners was patently absurd. Most telling is the fact that very few of the public members had distinguished themselves either prior or subsequent to their appointment.

Their very appointment had been a result of political patronage. The appointments by the present Governor during his first term in office were a glaring example which directly caused an obstruction on the Board of Governors. There is no evidence that public members contributed to the betterment of the State Bar. On the contrary, divisiveness was created.

Change number two was the abolishment of the volunteer system. Prior to the early eighties, all State Bar discipline was administered by volunteer lawyers. Contrary to wide-held beliefs, lawyers were not “soft” on lawyers. There was lots of discipline administered under the old system. The miscreants had not been a protected group. The cost of the system was low. The greatest benefit of the volunteer system was the pride and enthusiasm created in the profession. Even the appointment to the prosecutorial staff, the lowest rung on the ladder, became the envy of all practicing attorneys.

Change number three was the brain child of the United States Supreme Court when it sanctioned advertisements in a case entitled Bates v. State Bar of Arizona, 433 U.S. 350. Contrary to folklore, First Amendment free speech is not unlimited speech. The framers of the First Amendment did not outlaw defamation, hate speech or any of the many exceptions to the free speech doctrine. The practice of law is an honored and respected profession. Ambulance chasing, billboards and advertising do not enhance the reputation of lawyers in the profession.

It is not a commercial enterprise.

With this background, the coupe de grace was struck in early October of this year. What good had been left alive was struck down by our legislature and the Governor. In one fell swoop, what had been left of the independent State Bar was totally eliminated. Armageddon has consumed the State Bar.

The legislature and the Governor obviously are not, but should be aware of the doctrine not to fix that which is not broken. There are numerous other problems which could and should attract the attention of California’s legislature. Massive unemployment, taxation, education on all levels are just a partial laundry list of what should concern our legislators. Instead, they focused on what was not in need of correction.

What are those changes? Re-name the Board of Governors to be the Board of Trustees. Only six are to be elected by the attorney population of the State Bar. Five are to be appointed by the Supreme Court and two are to be appointed by the legislative leadership of California. Then there are to be appointed six public members of whom four are to be appointed by the Governor and two by the legislative leadership. There are other changes, but of a lesser nature. The overall effect? Reduce the influence of the governance of the State Bar from the attorneys and increase the influence of the Governor and the legislature.

The history of State Bar leadership since the State Bar’s founding in 1927 does not appear to dictate a change. Change for change’s sake is not a proper test. Neither the Supreme Court nor the legislature have expertise in appointive powers. Shouldn’t California’s legislature, which decreed these changes, consider other, more needy causes such as described above, or perhaps the effect of lobbying the members of the legislature, a cesspool of its own, upon the members of the legislature?

The transition from a large elected Board of Governors to a mainly appointed and non-elected Board will have a devastating effect upon the morale of the State Bar. It’s a repetition of the damage done when we gave up the volunteer system.