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The State Bar: Raising the Bar

By Annie Gausn | Sep. 2, 2006

Law Office Management

Sep. 2, 2006

The State Bar: Raising the Bar

Twenty-five years ago the State Bar championed judicial independence—and then endured political attacks, a debilitating lawsuit, and governor's veto. But from that crisis a smaller, more responsive bar has emerged. By Clyde D. Leland

By Clyde D. Leland
      Like Mark Twain, the State Bar of California would like everyone to know that rumors of its death were greatly exaggerated.
      When the State Bar of California launched California Lawyer to replace the old State Bar Journal, its last editor, Jan T. Chilton, complained, "We see the switch to a staff-run magazine as the climax of a disturbing trend." Chilton said it was another sign of "the diminution of lawyer control and participation in the State Bar and the concomitant expansion of State Bar staff."
      The trend that disturbed Chilton was about more than losing his franchise to professional journalists. It was also about making the bar more responsive to the general public-as a state agency ought to be-as well as to the state's attorneys, as a membership organization must be.
      The encroachment of nonlawyers on the bar's affairs began in the early '80s with the addition of public members to its Board of Governors and the involvement of its Conference of Delegates in controversial political issues, such as the death penalty and the legalization of prostitution. In addition, in 1981 the bar's Office of Legal Services, encouraged by then-president Robert D. Raven of San Francisco, actively opposed budget cutbacks proposed by the Reagan administration for the federal Legal Services Corporation. In 1982 another State Bar president, Anthony Murray of Los Angeles, then took the organization into the middle of a contentious debate over an electoral challenge to Chief Justice Rose Bird and three associate justices of the state Supreme Court.
      These policy initiatives produced a backlash from opponents who characterized the bar as insular and autocratic. The countermovement divided loosely into three groups: those who said such issues were beyond the purview of the organized bar; those who thought a mandatory bar should not be devoting resources to causes (or a magazine) that many of its members did not support; and those who simply opposed positions the bar was taking and did not want, for example, murderers to escape the gas chamber, prostitution to be legal, the federal government to fund poor people's lawsuits, or Rose Bird to be chief justice.
      For the next decade these groups waged a three-pronged attack. They argued in the Conference of Delegates and before the Board of Governors that lawyers shouldn't become involved with certain issues. They went to court in October 1982 alleging that the use of mandatory bar dues for political and ideological purposes is unconstitutional. And they rallied voters state-wide, helping elect two-term governors George Deukmejian in 1982 and his successor, Pete Wilson, in 1990. It was Wilson who finally cracked the whip, vetoing legislation in 1997 that authorized the bar to collect membership dues and bringing the organization to the brink of extinction. (The state Supreme Court came to the rescue, permitting the State Bar to impose a fee to fund disciplinary proceedings.)
      Although Wilson's veto of the dues bill may have been the most dramatic salvo, and the debate over purview the most interesting, the litigation prong of the attack proved the most effective. Plaintiffs in Keller v. State Bar argued they should not be required to lend their financial support to any political or ideological cause, especially those "which they find morally objectionable and repugnant to their privately held beliefs." They targeted the bar's public information projects and the "political and ideological speeches" of bar presidents. But the suit also sought to prohibit the State Bar from lobbying, submitting amicus curiae briefs, and financing meetings of the Conference of Delegates. The state Supreme Court expressly approved these three activities in a 1989 ruling, and the plaintiffs appealed.
      In 1990 the U.S. Supreme Court's decision in Keller (496 U.S. 1) threw the bar's budget into tumult. The court ruled unanimously that mandatory bars may not fund "political or ideological" programs with the dues of lawyers who object to those programs. During the eight years of litigation, the State Bar transferred ownership of California Lawyer to a private publisher; slashed the budget of its Office of Legal Services; and severed ties with the Conference of Delegates. The Board of Governors considered the issue of purview in almost every action it took.
      The bar's disciplinary apparatus, subject to repeated criticism for inefficiency and favoritism, went through huge changes of its own. In 1989 the Legislature created the State Bar Court, the nation's first independent, professional disciplinary court staffed by full-time administrative law judges. Indeed, although much of the criticism of the discipline system had come from conservatives in Sacramento, the new court reflected the "disturbing trend" of diminished control by lawyers, who had previously served as volunteer disciplinary judges.
      The State Bar that emerged around the turn of the millennium was thus very differ-ent from the one that existed 25 years earlier. Though conservatives may have slowed the bar's lean to the left (that is, to the middle), they did not stop it. Many of the same people who had worked for change through bar sections and committees simply switched mantles, doing the same work through other organizations:
      A new state entity called the California Commission on Access to Justice not only continues to support full public funding of legal services for the indigent but also has pushed other initiatives that appear to work against the narrow interests of the legal profession-such as "limited-scope representation," in which a lawyer performs discrete services for a fixed fee but does not take on the client's whole legal matter.
      The California Association of Local Bars provides a forum for local bar leaders and other bar junkies to exchange information and pat each other on the back, while supporting legislation related to the administration of justice and the maintenance of an independent judiciary.
      The Conference of Delegates-now a nonprofit corporation-is up and running again, full of sound and fury, signifying that the Conference of Delegates is up and running again.
      All of these entities appear to be thriving, and their independence seems to have freed the State Bar to do a better job as well. The increased efficiency and consistency of discipline administered by the State Bar Court is just one example. While the Conference of Delegates can now pursue its legislative agenda unfettered by purview debates, the State Bar lobbies more effectively within strictly defined limits, giving its support of a bill greater credibility. Thus, the Legislature this year approved a two-year dues bill that includes an increase in the second year, and the bar's sections are able to share their expertise in Sacramento free of Republican legislators' prejudice against the Conference of Delegates.
      These changes, however, come at a cost. Some bar activists lament that the state's lawyers no longer speak with one voice. "Who is going to defend the legal profession and the judiciary if not a vigorous and strong State Bar?" asks James Brosnahan of Morrison & Foerster in San Francisco. But the problem was always that the bar didn't speak with one voice, which may help explain why it failed in its effort to defend Rose Bird. An organization comprising every attorney in the state will rarely, if ever, reach consensus, especially on contentious political issues. The harmonious combination of separate, clear voices seems to be producing a better sound than one voice that could never decide which key to sing in.
      Even privatizing the bar's magazine has proven a boon to both sides. The bar's California Bar Journal provides association news to those who care about it, while California Lawyer continues to win journalistic awards and turn a profit.
      Shortly after Governor Wilson's dues-bill veto in 1997, California Lawyer published a cover story titled "Who Killed the State Bar?"-echoing the age-old question of who killed the dinosaurs. Paleontologists now tell us that no single agent killed the dinosaurs; the Earth's whole climate changed. But unlike the dinosaurs, the State Bar was able to evolve.
      Clyde D. Leland ( is a former senior editor of California Lawyer and a current member of its editorial advisory board. He is a principal of Leland Communications, based in Berkeley.
      Time Capsule Sidebar
      Time Capsule ? 1987
      Malcolm Lucas is appointed chief justice of the California Supreme Court by Gov. George Deukmejian.
      In California Fed. Sav. & Loan Ass?n v. Guerra, the U.S. Supreme Court upholds a California law that gives a woman the right to return to work after a four-month maternity leave.
      In California v. Cabazon Band of Mission Indians, the U.S. Supreme Court rules that California does not have the civil regulatory authority to proscribe gaming on federally recognized tribal lands.
      Property rights advocates win big when the U.S. Supreme Court holds in Nollan v. California Coastal Commission that an illegal taking occurs when there is no ?essential nexus? between the conditions imposed for receiving a building permit and the legitimate government interest being pursued.
      DNA fingerprinting is introduced in court for maternity cases.
      Time Capsule ? 1988
      33% American Bar Association members surveyed who have a car phone
      66% Businessmen and male lawyers found to wear their neckties tight enough to restrict blood flow to the brain
      President Ronald Reagan signs the Civil Liberties Act of 1988, pledging $20,000 in reparations to each Japanese American interned by the federal government during World War II.
      Time Capsule ? 1989
      43% Practicing lawyers who say they would quit law tomorrow if shown a ?feasible alternative?
      The state Legislature creates the State Bar Court, the nation?s first independent disciplinary court staffed by full-time administrative law judges.
      Pelican Bay State Prison opens, designed to house the state?s most dangerous criminal offenders.
      ?The profession is clearly committed to having women, but it?s not necessarily committed to doing what it needs to keep them.? ?Kate McGrath of the San Francisco Lawyers? Committee for Urban Affairs, on the lack of flexibility for women in law firms
      Time Capsule ? 1990
      40% Minimum old-growth forest the U.S. Fish and Wildlife Service requires lumber companies to leave intact within a 1.3-mile radius of any northern spotted owl nest, after the species is declared threatened
      Michael Milken, who pioneered the use of high-risk junk bonds, pleads guilty to breaking federal securities and tax laws and agrees to pay a record $600 million in penalties.
      Pete Wilson is elected governor; Dan Lungren is elected attorney general.
      Time Capsule ? 1991
      Voters approve Proposition 140, which mandates term limits for California legislators.
      The Court TV network is launched on cable.
      ?One taste of chocolate candy and bubble gum, and I was a capitalist.? ?Ninth Circuit U.S. Court of Appeals Judge Alex Kozinski, on emigrating to the United States from Romania at age eleven
      ?When I?m busy, I?m a teddy bear. But when I?m waiting?waiting for something or just waiting to get older?I can get really pissed off.? ?Melvin Belli, the ?King of Torts?

Annie Gausn

Daily Journal Staff Writer

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