Governance in the Public Interest Task Force - APRIL 4, 2016
The State Bar of California’s Task Force on Governance in the Public Interest held its second of five meetings on April 4, 2016. The Task Force received comments from a dozen people regarding the pros and cons of the unified bar structure in place since 1927.
Tiela Chalmers, CEO and GC of the Alameda County Bar Association, who said she was speaking on her own behalf and not the association’s, asked the task force to consider continuing the unified bar. One reason is the State Bar’s ability to coordinate to increase access to justice and other public protection proposals such as the Task Force on Admissions Regulation Reform that calls for among other things 50 hours of pro bono service before admission to the bar. Also, she said the State Bar unifies and brings together the voluntary bar associations across the state. A statewide voluntary bar would be in competition with the local bars. “United we stand, de-unified we may dissipate and lose our national standing,” she said.
Alon Rotem, General Counsel at Rocket Lawyer, said his company is trying to use technology to help those who cannot afford to hire an attorney. However, when the company partnered with the ABA to connect ABA lawyers with small businesses voluntary bars were critical because they saw the service as competition. “They kowtowed to the loudest of their members,” he said. “Unified bars are better able to balance the interests of the public and their members. The unified bars have been more sophisticated in looking at the changing legal landscape.”
Judy Johnson, who was executive director of the State Bar of California from 2000 to 2011, said the bar and its board have always acted out of concern for the public interest. Without a statewide organization, the largest local bars (in San Francisco and Los Angeles) would drive the discussion and other voices would struggle to be heard. She noted that the State Bar is able to speak with one voice to promote diversity efforts and increased access to legal services. “We would lose that large singular voice if we were de-unified,” she said. Johnson also questioned whether the State Bar’s Sections would be able to survive financially as an independent entity. Unlike the Board of Trustees, the practice area sections focused mainly on publishing journals and organizing Minimum Continuing Legal Education programs should not be subject to Bagley-Keene Open Meetings Act, she said.
James J. Brosnahan, senior counsel at Morrison & Foerster who has been a 48-year member of the State Bar Conference of Delegates, which spun off from the State Bar and became the Conference of California Bar Associations in 2002, spoke in favor of a voluntary and independent statewide bar to handle all functions other than discipline, licensing and regulation. The Supreme Court, not the Legislature, should have oversight of lawyer regulation. “It is a reversal of history to have the Legislature tell lawyers what they can and cannot do,” he said. “The Legislature controls the money of the State Bar and that creates a conflict between what the lawyers on their own might want to do and what the Legislature will allow them to do. That is a conflict.”
Justice Ronald B. Robie of the 3rd District Court of Appeal, who was chairman of the California Commission on Access to Justice from 2009-2014, said he supports the unified structure. “The basic structure has served lawyers, the public and the judiciary well,” he said. He pointed out that the bar has helped lead efforts to restore court funding, increase access to justice and advance civics education.
Carole D’Elia, executive director of the Little Hoover Commission, gave an overview of the independent, state oversight agency created in 1962, which investigates state government operations and promotes efficiency, economy and improved service.
The commission is reviewing occupational licensing in California and whether the process is shutting people out of the market or hurting the economy. “All professions will resist any change in breaking down fences that were put up,” she said. The commission also released a report last year that recommends adjustments to the state’s open meeting rules to make it easier for decision-makers to talk informally with their colleagues.
Linda Katz, principal analyst in the State Bar’s Office of Research and Institutional Accountability, shared her preliminary research comparing California to other State Bars across the country. She also is working on classifying the State Bar’s functions along a continuum, from voluntary to mandatory.
Dennis Mangers and Joanna Mendoza, proposed restructuring the State Bar so the regulatory functions – including attorney admissions and discipline – would remain and be overseen by a 13-member board made up of seven non-lawyers and six lawyers. It would be up to the State Bar to work out the details for implementation in January 2019. “I want to stimulate a conversation that needs to happen. I believe that what we are proposing will inure to your benefit and that of the public,” Mangers said.
Donna Parkinson, a member of the Business Law Section of the State Bar, said a section task force she chaired came to the conclusion that the sections should become independent due to increased overhead costs and the imposition of the Bagley-Keene Open Meetings Act on the groups’ meetings. “The real question is whether the sections can survive if things remain as they are,” she said. “We are losing people and we’ll lose more. There are other places where this work can be done.” Parkinson belongs to a group of lawyers who have formed the California Lawyers Guild as a starting point to creating a statewide, voluntary organization.
Peter Szurley, a longtime Sections volunteer who also helped to form the guild, said: “We’d like to offer ourselves as part of the solution. We are open to whatever the State Bar would like to do to collaborate.”
Patrick Kohlmann, chairman of the Trusts & Estates Law Section, said he and other section members support unification. He cited programs to educate seniors and publish ethics guides for lawyers.“ If we were a trade association, would the public still have the benefit of these programs?” he asked.