Bar’s Disciplinary Policies at Root of Dispute Over Dues

When San Francisco attorney David M. Heilbron was elected president of the State Bar of California last summer, he intended to spend most of his one-year term promoting ways to get civil cases into trial faster.

“And I haven’t done a damned thing on that yet,” he said ruefully, “because of this problem.”

What Heilbron delicately refers to as “the problem” is, in the short run, the State Bar’s legal ability to collect 1986 dues and, in the more portentous long run, the very existence of the State Bar.

At issue is the Legislature’s concern about the Bar’s burgeoning backlog of unresolved citizens’ complaints about lawyers’ mishandling of their cases, usually referred to as “attorney discipline.” Fueling the feud is the additional complaint by some lawmakers that the Bar improperly lobbies on legislation and expresses opinions on state, national or international issues through widely publicized resolutions passed by the Bar’s Conference of Delegates.

$18 Million in Dues

The Legislature sets Bar dues, which must be paid by all of the state’s nearly 90,000 attorneys, and many legislators and their powerful leaders disapprove of how those dues, about $18 million, are being spent.

“The only way I can require lawyers to pay dues is to spend that money to protect the public--for attorney discipline--not for all this other nonsense the Bar does,” said Assembly Minority Leader Pat Nolan (R-Glendale), who blocked passage of the dues bill when the Legislature adjourned in September. Lobbying and what he calls “political activities” rankle Nolan almost as much as the Bar’s record on discipline. The Bar, he charged, behaves like a trade association furthering its own interests but, unlike other trade associations, forbids anyone to practice the profession unless he pays dues.

“What it gets down to is the Bar has grown like a weed in the backyard,” Nolan said. “It does not do what it is supposed to do well, which is discipline, and it is involved in many things it shouldn’t be involved in--things like resolutions to legalize marijuana or involvement in Nicaragua or lobbying against my bill to set fees for public-interest law firms at a special rate. . . . I have been very distressed at the arrogance of the Bar. They expect us to say their budget is inviolate. . . . They appear to be playing a game of chicken with the Legislature.”

Denying any intentional or unintentional arrogance, Heilbron insisted that the Bar is “utterly and absolutely” committed to correcting its sluggish discipline system and is also willing to discuss legislators’ complaints about its lobbying and resolutions. Heilbron’s real fear is that the Legislature will drastically overhaul the Bar, eliminating many programs that he believes help lawyers and the public--part of what Nolan labels “nonsense.”

“If you stripped the Bar of everything but admissions (licensing) and discipline, and then, as some want, took away discipline,” he said, “it would just be a carcass that you couldn’t pick at. That is fairly troubling.”

Those programs, Heilbron said, include legal services to the poor by volunteer lawyers (9,000 in 1984); $12 million to $14 million a year for legal aid groups; programs to train attorneys to manage their offices and communicate with clients, the chief sources of malpractice complaints; pamphlets for the public on how to find a lawyer or what to do after an accident, and his pet project, court reform to speed and simplify resolution of cases.

“If you take away from us those kinds of programs done in the public interest and for the public good (that) the profession has been for centuries committed to doing, if you strip those away,” he said, “you would force us to be the kind of trade association people sometimes charge us with being.”

The stalled bill for 1986 dues, which passed the Senate, provided a $35 increase primarily to finance attorney discipline, making the annual fee $215 for most lawyers. The bill also required the Bar for the first time to submit its annual budget for legislative review and recommendation, indicating the lawmakers’ determination to see that the dues are spent for the public’s benefit.

But Nolan’s Republican bloc stymied approval, leaving the bill in limbo with no Assembly vote and the Bar with no means to collect operating funds. Heilbron next went to the California Supreme Court, asking it to authorize collection of the Bar dues.

Nolan and Assembly Speaker Willie Brown (D-San Francisco) wrote Chief Justice Rose Elizabeth Bird, asking the court to let the Legislature deal with what they considered a legislative rather than a judicial matter. Republican Gov. George Deukmejian, although he has taken no public stand about the Bar dues debate, also asked the court to leave the matter to the lawmakers. The court agreed, deferring any action until Feb. 3, giving the Legislature time to take up the dues bill when it reconvenes in January.

Faced with the possibility of laying off its 400 employees Dec. 31, the date when it estimated it would run out of money, the 22-member Bar Board of Governors voted Dec. 3 to ask all lawyers to pay their dues voluntarily. The request was mailed Dec. 6.

A satire columnist for the Daily Journal legal newspaper, Milt Policzer, who is an attorney himself, wondered in print why the governors didn’t offer toasters to their contributors and admonished his lawyer readers: “OK, stop snickering out there. This is serious. Would you snicker at a plea from the United Way?”

Voluntary Payments

But Heilbron hopes voluntary payments will keep the Bar in the black until the Legislature authorizes collection of the mandatory dues for 1986.

“Generally people don’t respond well to paying taxes,” he conceded. “But I am expecting a really very significant response.”

Expectations at Bar headquarters in San Francisco and in the Capitol in Sacramento are that, come January, the Legislature will pass emergency legislation to enable the Bar to collect dues for 1986, and then launch hearings into every aspect of what the Bar will be permitted to do in the future.

The three likeliest outcomes:

- Heilbron’s plan, which would retain the Bar as it is, responsible for licensing and disciplining lawyers and conducting other activities such as continuing education for lawyers, providing funds to legal aid groups and working for legislation to improve justice, with most work financed by mandatory dues.

- Nolan’s plan, which would limit the Bar to licensing and discipline, funded by mandatory dues cut to about half the current amount, with all other activities left to an unformed voluntary trade association that lawyers could choose to join and fund much like a county or city Bar association. The plan was the goal of a lawsuit by Nolan and others, rejected by the Sacramento Superior Court and now on appeal.

- The Presley plan, designed by a task force organized by Sen. Robert Presley (D-Riverside), which calls for a separate state agency directly under the Supreme Court to discipline lawyers, much as the Board of Medical Quality Assurance disciplines doctors. This plan would permit the Bar to retain licensing and all other activities funded by reduced mandatory dues. Presley, who is not a lawyer, will sponsor the bill being drafted by his 14-member task force of legal scholars, lawyers and others.

Brown Denies Grudge

Brown told The Times through an aide that he has no grudge against the Bar and would vote for a dues bill in January, lending clout to the theory that the Legislature wants to put out what Heilbron calls “the immediate fire,” and then debate the Bar’s future. But Nolan said he would argue against such a concession.

“If we take the pressure off them for a year,” Nolan said, “we will never have this opportunity again to get any kind of reform.”

Presley was more magnanimous, observing that the dues increase is necessary to deal with the discipline backlog and that the Bar should be permitted to collect the dues and do what it can with the discipline problem while his bill proceeds. He candidly concedes that he is unsure if the Legislature will pass his bill. If a new disciplinary commission is approved by lawmakers, he said, he might recommend that enactment be delayed until July 1, 1987, to provide setup time.

The brouhaha between the Bar and the Legislature cuts across partisan and professional lines, and apparently has little to do with the November retention election of Bird and other Supreme Court members, and conservative Republicans’ efforts to oust them. The one thing Democrats, Republicans, lawyers, non-lawyers and Bar officials agree on is that attorney discipline must be more swift and more strict.

‘A Little Too Nice’

“I think we are a little too nice,” said Los Angeles sole practitioner Robert M. Rosenthal, a former member of the Bar’s Conference of Delegates, who advocates stripping the Bar of its disciplinary function.

Heilbron has pledged to reduce the backlog of more than 3,000 discipline cases as soon as the Bar receives the increased dues so that it can afford more investigators. During the dues debate, he has developed strict, uniform rules that will go into effect Jan. 1, assuring that “penalties fit the crime” for errant lawyers. He believes that attorney discipline will improve because of the attention focused on it by the Legislature.

Nevertheless, Presley believes that the Bar must get out of the discipline business. Nolan, conceding he is not ready to co-sponsor Presley’s bill, said he could accept the Presley proposal if a majority of legislators approve.

“Heilbron says they can do it, but as well-intentioned as I’m sure he is, the problem with all that is we have been told the same thing by other state Bar presidents,” Presley said.

8,329 Complaints

Times figures compiled from State Bar and state Supreme Court clerk’s office records showed that out of 8,329 complaints received, 11 attorneys were disbarred, 81 were suspended, 23 received public reproval and 48 private reproval. And Nolan’s press secretary, Mike Pottage, said only 11 lawyers were disbarred in 1984 and 200 given sanctions out of 9,000 complaints. That, Nolan said, is neither strict nor efficient discipline.

Nolan has also complained about the amount of dues, more than three times the $60 paid by New York lawyers and twice that paid by California doctors to their association. But even he criticizes how the money is spent more than how much is collected.

“We are paying a lot and getting a little,” lawyer Nolan said of his dues.

“The amount does not dent my pocketbook that much,” dissident lawyer Rosenthal said, indicating why Heilbron has had no complaints from attorneys. “I would rather spend $500 a year and see the Bar cleaned up than $215 and have it the way it is.”

Policzer, who does not practice law but pays his dues to retain Bar membership, called the $215 dues outrageous, but said the reason he objected is that “the money is used for all kinds of things nobody cares about--like . . . lobbying for things much of the membership is not in favor of.”

Nolan’s Background

Nolan, the Bar’s most vociferous and powerful legislative critic, prides himself on being a New Right ideologist, but has also tried to take a pragmatic approach as minority leader, working cooperatively with Brown and other Democrats. Now in his fourth term, the 35-year-old legislator has criticized Deukmejian for being too liberal, and once picketed the Ku Klux Klan for espousing what he considered socialism. However, his determination to get what he wants through compromise may not extend to the Bar controversy. He complains that Bar officials have done nothing to institute reforms that he wants, and that if they do not move quickly they will not be permitted to collect 1986 dues.

“I would like the Bar Board of Governors to request us to limit them to admissions and discipline and cut everything else loose,” he said. “If they are not willing to do that, I would vote for a separate state agency (the Presley plan) and would vote to shut them down.”

Heilbron, a civil litigator accustomed to negotiation, defends part of what Nolan criticizes as “political activities” as a benefit to the public. In lobbying the Legislature, Heilbron said the Bar helps citizens by proposing and advocating bills on court and code reform. One specific example, he said, was the bill establishing a $1 form that people can buy to use in drafting their own wills.

On Nolan’s concern over resolutions by the Conference of Delegates, made up of representatives of various Bar associations, Heilbron said, the lawyer delegates have a right to express their opinions in the form of resolutions under the First Amendment. But he said he understands legislators’ objections to publicity about those resolutions.

Nicaragua Resolution Cited

“As a practical matter, I don’t think the resolution on Nicaragua helped Nicaraguans, and on the other hand that causes problems for the Bar’s good legislative program,” the veteran lawyer said of a resolution passed in September at the State Bar’s convention in San Diego. “Just on a cost-benefit analysis, resolutions of that kind are of a questionable value.”

The Conference of Delegates executive committee is discussing limiting the purview of resolutions put before members, which may resolve legislators’ criticisms, Heilbron noted. Faced with the demands to restrict Bar activities, he remains cautiously optimistic about the Bar’s future.

“I would have to say we are in for some rocky times,” he said. “Although we would undoubtedly have some changes resulting from all this, I would hope we come out of it pretty whole. If we don’t, it would not be a good thing for the profession or for the people of the state because we do do things that are good and useful that ought to be done. We would be less of a profession if we didn’t do these things.”