Editor’s Note: This is for all you out there (?) who think lawyers can do no wrong, and are . . . our heroes! Hello. Anyone still there, still reading? You should be, it’ll give you some (more) ammunition.
Most professionals belong to one or more trade associations. Membership in some are voluntary; membership in others are not.
In California, apart from voluntary membership in local trade associations akin to the Rotary Club and Kiwanis, all lawyers must be licensed by and members in good standing of the California State Bar Association. In theory under the auspices of the California Supreme Court, the California State Bar is charged with overseeing a licensing program (both initial and continuing) and a system to assure that the public is protected from professional misconduct (both negligent and unethical practice).
The long recognized problem of the California State Bar is that it is run more like an insider good old boys (and girls) social club than a professional regulatory organization. To be sure, this is somewhat of an exaggeration and oversimplification, but not completely.
Audits commissioned by the California State Legislature suggest several kinds of California State Bar mismanagement, including missing and misspent resources, excessive executive compensation, and inadequate and inconsistent professional discipline. Concern is high enough that the Legislature has presently suspended the Bar’s authority to collect license fees necessary for it to function. (Somehow I doubt that I won’t have to pay my annual license fees. One way or another, I’m sure I will be required to pay those fees without skipping a beat.)
Several pieces of legislation are now pending to reform the process. One possible approach will be to “deunify” the Bar: To divide it up into two organizations, one to handle licensing and discipline and protection of the public interest to be administered by a 13-person board, seven members of which will be publicly appointed non-lawyers, and in which all practicing lawyers will be required to be dues paying members in good standing, and the other essentially a lobby organization run by lawyers for lawyers and in which membership will be purely voluntary.
If the California legal profession doesn’t want to be stripped of any independence and turned into a political rather than a professional organization, then it had better clean up its own act, and quickly, to effectively and tangibly demonstrate that political assistance is not needed. I should say no longer needed because it is needed as matters now stand, or sit (idly by), today.
Here are a few suggestions that our Bar should implement “immediately” (let’s say before the end of this calendar year, remember the Queen Mary doesn’t corner like the “svelte” tugboats that help guide it):
¤ The Bar should voluntarily deunify on its own. It should create a regulatory arm in which a majority of the board is held by independently appointed non-lawyers) and fee paying membership in good standing in which is mandatory in order to fund licensing and disciplinary programs. (This really is a no-brainer. In 2015, the U.S. Supreme Court ruled that professional organizations the majority of the boards of which are held by licensed members of the underlying profession may be found guilty of our antitrust laws. Right now 13 of the 19 seats on the California State Bar are held by practicing lawyers. What is our Bar waiting for?)
¤ In the face of the regulatory arm, a second arm run solely by lawyers should be free to lobby as they see fit, in which a fee paying membership would be voluntary, and would therefore have to be demonstrably earned.
¤ A transparent audit system should be put into place to assure that past errors are atoned and not repeated.
¤ All State Bar “governors” with an attitude remotely resembling the attitude of members of Congress and who think the State Bar is its own little club should be encouraged to step down,and not permitted to hold any other public office.
The clock is ticking and is connected to a live bomb. Fortunately, the solutions are not really all that difficult. Besides, if we don’t regulate ourselves better than we have been doing, the alternative will likely be worse. Much worse. Just think of all those little tugboats up in Sacramento lining up to poke and prod.
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