Governance in the Public Interest Task Force - Feb. 25, 2016

The State Bar of California’s Task Force on Governance in the Public Interest held its first of five meetings on Feb. 25, 2016.

The Task Force received comments from six experts on the structure and functioning of lawyer and other professional organizations. In addition, two representatives of the State Bar’s Council of State Bar Sections, Perry Segal and Donna Parkinson, also offered comments, explaining their efforts to study the comparative advantages and disadvantages of remaining a part of the State Bar, now that funding and open meeting requirements have become increasing challenges for their effective functioning.

Paula Littlewood, executive director of the Washington State Bar Association noted the functional similarities of her organization with those of the State Bar of California. Both organizations have full responsibility for all regulatory and membership functions in a mandatory structure. She observed that after the Washington State Bar Association was created by the State Bar Act in 1933, the Washington Supreme Court, concerned to protect judicial independence, has made clear repeatedly in subsequent years that “the court is in charge.” She noted that the bar association is not a state agency or a judicial branch agency, but a political subdivision. With the support of its State Supreme Court, the Washington State Bar Association has also moved away from regulating lawyers alone, to regulating "legal professionals," including three new paraprofessional specialties.

Ms. Littlewood decried the protectionism that is present in the traditional legal profession, in her words the result of “financial interests and arrogance.” In Washington, this has begun to change. She described “a culture of innovation” in Washington — an example of the fact that culture can be changed with “leadership and bold moves.”

Speaking for the California Medical Association, Vice President Yvonne Choong explained the regulatory and representational structures which support California’s 140,000 physicians, 85,000 of whom are in active practice, with almost half members of CMA. Founded in 1856 in response to public health outbreaks, CMA and its regulatory counterpart, the Medical Board of California are now completely separate entities. The Medical Board is responsible for all licensure, enforcement, regulation and legislation, board administration and some outreach and education. CMA supports policy and legislative advocacy on behalf California physicians about practice management, economic issues and public health. While in the past there has been tension between the two organizations about how much influence CMA should have, today there are many areas of cooperation. Nonetheless, CMA members sometimes complain about the speed of the licensing process and the increasing regulatory burden physicians. Ms. Choong noted that the structure allows CMA to “focus on broader health policy issues, which are not part of their mission and on which the medical board, as a state agency cannot weigh in.” Disadvantages of the split relationship center on recruitment and organizational viability. Still, fundraising can be a challenge for a voluntary association and she noted that, “It would be nice to have an automatic $78 million that comes in every year.”

In her comments, Ellen Miller, currently the executive director of the San Diego Bar Association, noted that the question facing the task force is what governance structure will best protect the public. As an example, she pointed to lawyer referral service programs (LRS) as increasingly irrelevant to today’s consumers seeking to connect with lawyers. “The market has shifted and expanded, LRS programs now have limited impact. If we polled consumers about how they find lawyers, they do not use LRS. Miller posed an important question to the task force: “Does the State Bar actually need to regulate LRS programs anymore”?

With experience in national, state and local bar associations, Ms. Miller reminded the State Bar task force that its statewide reach and past “extraordinary leadership” provided an opportunity to bring stakeholders together and “do remarkable things… to decide on the next steps for the profession.” She reminded the task force that “as a voluntary bar … we can’t do this on our own — we need the leadership of the State Bar.” In her words, “the State Bar has a powerful convening authority.”

California Insurance Commissioner David Jones offered a comparison of the work of the commission to that of the State Bar of California, the only two independent regulatory organizations charged with public protection in California. After describing the functions, staffing and size of the regulatory responsibilities of the commission, he closed by lauding the work of the State Bar of California in “assisting and encouraging organizations that encourage free legal services to the poor … for trying to encourage lawyers to do work to serve the poor.”

State Bar Trustee Dennis Mangers asked, “Why are attorneys still permitted to govern themselves? What differentiates attorneys from others”?
In response, Commissioner Jones pointed to a similarity between the commission and the State Bar.  “Each is independent. My election [as commissioner] allows me to avoid political interference from other elements of the Executive Branch.” Even so he noted that there is no prohibition against an insurance agent or broker serving as a commissioner. Thus the State Bar “and my office are distinct in California’s regulatory system” as both are independent and, while dedicated to consumer protection, “are not  lodged within the Office of Consumer Affairs.”

The Commission on Judicial Performance was described by its Director-Chief Counsel Victoria Henley. Thanking the State Bar of California for its role in causing the creation of the commission, the first in the nation when it was created in 1960, she explained its role in judicial oversight as an independent body within the judicial branch. Ms. Henley urged consideration of the benefit of public members and other professionals; she also explained changes required of the commission when excessive reliance on confidential proceedings and a lack of public scrutiny brought about a decline in public confidence. Even so, the commission’s proceedings, unlike those of the State Bar, are not subject to either the Bagley-Keene Act on open meetings or the California Public Records Act.

Finally she suggested that as different modes of delivery of legal service are considered, the discussions should go beyond lawyers, alone. The lay public has much to contribute to questions such as conflict of interest and allowing internationally credentialed lawyers to practice in California.

In response to a question from Trustee Danette Meyers, Ms. Henley noted that the commission has noted a correlation between disciplinary problems and elected judges from smaller courts.

The final witness was George Brown, State Bar of Wisconsin Executive Director. Director Brown described a very different organization of a mandatory bar which performed few discipline and regulatory functions, all of which occurred in two independent agencies located within the State Supreme Court. Nonetheless the State Bar managed the assessment and collection of fees and certain other administrative functions. As a bar which had operated in both a mandatory and voluntary structure over the years, Brown noted that initially the State Supreme Court had found a law passed to require a mandatory bar as unconstitutional because “lawyers are officers of the court.” Brown reviewed the various mandatory and voluntary bars in the United States, noting that only one local county bar is mandatory and that among states, 33 state bars are mandatory bars, with the remainder voluntary. Three states, however, have both a mandatory regulatory bar and a mandatory voluntary association. Among voluntary bars, participation and success varies widely. Nonetheless, for Wisconsin, a subsequent change from mandatory to voluntary status by the State Supreme Court had “a stunning impact.”  It was “a complete change in attitude … to behave like a voluntary organization.” Membership was lost among government lawyers and corporate counsel, as well as those living out of state. Eventually participation returned and is now about 88 percent of members.