California State Bar Makes Radical Shift To Right The Ship

- California State Bar Makes Radical Shift To Right The ShipIt’s finally happening. Every California lawyer, whether dead or alive, active or inactive, disciplined or disbarred, is getting divorced. The State Bar of California is “deunifying,” leaving to itself the tasks of admission, discipline, public protection, and access to justice while launching the sixteen substantive sections, plus the Young Lawyers section, into uncharted seas of their own, effective January 1, 2018. The sections and the Young Lawyers Section will be a non-profit 501(c)(6) and voluntary to boot.

Hopefully, the divorce will be amicable, at least it is so far, but when it comes to divvying up assets and custody issues, it may be a different story. Bifurcation as to status is as of January 1, 2018; property division and custody issues may take longer. Governor Edmund G. (Jerry) Brown, Jr. signed SB 36 at the end of September.

Deunification has been some years in the making, given the State Bar’s actual ability to irritate, to an amazing degree, the California legislature, which holds the pursestrings for setting annual dues. Watching the State Bar fumble time and again over the past few years has been watching the proverbial train wreck: you hate to watch, but you just can’t turn away. It doesn’t say much when lawyers who are so good at advising others have trouble keeping their own house in order.

Just in the past several years, the State Bar has endured litigation which morphed into binding arbitration by a terminated Executive Director (he lost), the resignation of the Chief Trial Counsel about the same time that the Executive Director left the building, the failure of the bar to get a dues bill passed for 2017, the re-working of proposed changes to the California Rules of Professional Responsibility, a scathing audit of bar operations by the state auditor….should I go on? 

All you need to do is Google State Bar of California and “audit” or “deunification” or “cut score,” the current hot topic, and you can spend hours reading about the mishaps of what has been the country’s largest unified bar association. In fact, the Los Angeles Times recently editorialized that the bar exam cut score, presently the second highest in the nation, should be lowered. 

Another reason for deunification has been the valid concern about the anti-trust impact of the United States Supreme Court decision in the North Carolina Dental Examiners v. Federal Trade Commission case. 

So, in response and effective January 1, 2018, there will be some changes to the State Bar Board of Trustees governance to reduce the likelihood of a similar situation here in the Golden State.

Proponents of deunification have pointed to the State Bar’s apparent inability to multi-task, and by stripping the Bar of all jobs except admissions and discipline, public protection and access to justice, the hope is that the Bar will be better able to focus on its delineated responsibilities. 

Fingers crossed.

However, as a dinosaur, I will look back nostalgically at those days when the State Bar was unified, both a regulatory agency and a trade association for lawyers, the latter term which seems to have now an evil connotation. Pity. I think lawyers would like to have someone, preferably its regulator, say some good things about what lawyers do, rather than just castigating the entire profession for the sins of the few.

Hopefully the new “trade association” of the bar will do that, in addition to providing continuing legal education for its members. Some organization needs to speak up on behalf of the profession, rather than just continue to be everyone’s punching bag for real and imagined ills. We don’t make the facts; we just do the best that we can with the facts we’re given.

We lawyers seem to be wimps when it comes to telling our story. Not every lawyer is evil, not every lawyer overbills her clients, not every lawyer abandons his client, not every lawyer steals from the client trust account. I always thought (I know that for some readers that’s assuming facts not in evidence) that one of the missions of a unified bar was to be the voice of its members to the public, not just for public protection purposes, but to educate the non-lawyer community about what lawyers do. Silly me.

I digress. There are a number of deunified State Bars around the country, but 37 state bars are unified

According to the ABA resource page, the premise behind bar unification has been seen as a way to better regulate lawyers within a particular jurisdiction. That premise has hit the wall in California, and it will be fascinating to see if the deunified bar does a better job in its stated mission of public protection. It’s going to take some years to see what happens and whether de-unification does the job it’s supposed to do.

The State Bar of California, which is the largest unified bar in the country, was created ninety years ago in 1927, and while assailed for years for issues such as failure to discipline errant attorneys, managerial incompetence and the like, it has managed to survive as a unified bar until now.

The issue of compulsory membership in the State Bar is not new here. In the early 1990s, Keller v. State Bar of California went all the way up to the United States Supreme Court. Could the State Bar use mandatory dues for lobbying on issues that members disagreed with? The Supreme Court said no and that unified bar associations had to create some way for members who disagreed with lobbying policies to take a deduction from the mandatory dues. The Keller case was one of the first chinks in the armor of the unified bar.

So, as the State Bar of California now boldly goes where no California bar association has ever been before (sorry, Trekkies, for mangling the introduction to the original series) I and other lawyers of similar vintage may not be around to see how this shape-shifting experiment turns out. It hopefully will not be any worse than what has come before.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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