Justices Revive Dues to Fund Bar Ethics Unit

The California Supreme Court, declaring that the “administration of justice is at risk,” unanimously ordered California lawyers Thursday to resume paying dues to finance the discipline of unethical lawyers.

“Our action today is intended to respond to an unprecedented emergency threatening the protection of the public, the integrity of the legal profession and the interests of the courts,” wrote Chief Justice Ronald M. George in his opinion for the court.

The emergency exists because the state bar, the agency that regulates the state’s lawyers, virtually shut down in June after Gov. Pete Wilson and the Legislature failed to agree on a bar dues bill. The lack of funds forced the bar to stop investigating consumer complaints against lawyers. About 7,000 such complaints are now pending.

Acting on a petition by the state bar, the court authorized dues of $173 from each of the state’s 130,000 practicing attorneys. The bar has automatic authority to levy $77 in license fees, bringing the total each lawyer must pay by Feb. 1 to $250.

But even with the infusion of cash, the bar’s discipline system probably will not be back in full gear for many months. The financial crisis forced the legal licensing agency to lay off 90% of its employees. New lawyers and investigators now must be hired and trained. The fees authorized by the court also represent only 65% of what the bar spent last year on policing errant lawyers.

“This is a reprieve,” said Judy Johnson, chief trial counsel in charge of the bar’s discipline system. “This is not a solution or resolution of our crisis. Now the work begins.”

The complaints already pending will take more than a year to resolve, Johnson said, and she expects the bar will be inundated with many more once it reopens its doors to consumers.

“We want to be able to provide access,” Johnson said, “and at the same time, we frankly are concerned about being overwhelmed.” She said she did not yet know when the bar would reopen its consumer hotline.

The court’s decision represented a defeat for Wilson, who opposed giving the bar any money until major changes are in place. More than a year ago, Wilson began the current stalemate by vetoing a bill that would have allowed the bar to collect $458 in annual dues. Wilson and other bar critics have complained the agency is too liberal in its political positions and extravagant in its spending.

Wilson had also argued that the Supreme Court lacked the constitutional power to order lawyers to pay dues--traditionally a subject handled by the Legislature.

To ensure that the dues are spent only to police lawyers, the state high court appointed retired Court of Appeal Justice Elwood Lui, who is also a certified public accountant, to oversee the collection and disbursement of the money, which will be kept separate from regular bar accounts.

Wilson said Thursday he was satisfied with the court’s decision even though the justices “did not take as pristine a position on the constitutional doctrine of separation of powers as I recommended.” He praised the court for “wisely” ensuring that the money would go to a special master instead of the bar, and he blamed the bar for the political impasse.

In his opinion, George noted the separation of powers argument, but said the court has ultimate constitutional authority over lawyer discipline.

“If the court were to continue to decline to act now, in the face of the continued and increasing risk to the public, it reasonably could be viewed as shirking its primary constitutional responsibility over attorney discipline,” George wrote.

But, he added, “at such time as the legislative and executive branches authorize funding for an adequately functioning attorney discipline system, we shall resume this court’s traditional role” and leave the matter to the Legislature and the governor.

Opponents of the court’s intervention had argued that consumers could resolve their problems with their lawyers by filing civil lawsuits or criminal charges. But George noted that such options would not serve all consumers. Some lawyers would not be able to pay judgments won by former clients, and overburdened prosecutors might be reluctant to take on relatively minor criminal cases.

George also pointed out that all licensed professionals in California must pay fees to boards responsible for discipline. “An unregulated profession soon may lose its right to call itself a profession, as public doubts about the fairness of the practice of law and of the courts increase,” the chief justice wrote.

Although critics of the bar urged the court to wait until the Legislature returns, George expressed doubts that lawmakers would quickly resolve the crisis. The Legislature needs a two-thirds vote to pass urgency legislation. Otherwise, any new bill would not take effect until January 2000.

Wilson and other Republicans wanted to slash bar dues substantially and replace the bar’s board, now largely elected by attorneys, with a panel appointed by the governor or the California Supreme Court. Democratic lawmakers wanted smaller cuts in dues.

Governor-elect Gray Davis has pledged to try to work with the bar to resolve the stalemate. Davis is a longtime friend of bar Executive Director Steven Nissen and received considerable campaign support from trial lawyers who support the bar.

Nissen said he was pleased the court agreed to provide relief, but stressed that “it is only a fraction of what it costs to operate the regulatory system.” He said the bar will contact former employees who had expressed a desire to return. He cautioned, however, that many already have found other jobs and may not want to give them up until the bar’s future is more secure.

“It is only a beginning,” he said. “It is only partial funding. It will only help the system slowly get back on its feet.”

The dues will be spent to investigate complaints, prosecute lawyers in state bar courts, operate an ethics hotline for lawyers and provide arbitration in fee disputes.

Johnson, who heads the bar’s discipline system, said she hopes the agency will eventually obtain a more stable source of funds for policing lawyers. Disciplinary boards for other professions need legislative approval only to increase license fees, not to collect them each year, she said.

State Sen. Quentin Kopp (I-San Francisco), a bar critic, said the decision “sets a foundational precedent” for a relatively modest dues bill in the future.

UC Berkeley law professor Stephen Barnett, who also wants the bar replaced with a voluntary agency, said the ruling lays the groundwork for eventually separating lawyer discipline into an agency separate from the bar.

“We would have favored an actual takeover of the discipline system by the court, but that may come in the future,” Barnett said.

Normally, the bar disciplines 2,400 lawyers a year. About 200 lose their legal licenses or resign while charges are pending. Before its near-shutdown in June, the bar had disciplined about half the number of lawyers it sanctioned in 1997.

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Disciplining Lawyers

The State Bar of California investigates complaints against lawyers and prosecutes them in state bar courts. The recommendations for disciplinary actions are sent to the California Supreme Court, which makes the final decision. The following figures show decisions by the state Supreme Court against lawyers from 1994-97.

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Disciplinary measure 1994 1995 1996 1997 Disbarment 79 63 77 77 License suspension* 539 467 330 404 Resignation with charges pending 94 98 89 116

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* includes license suspensions with and without probation and stayed suspensions

Source: State Bar of California