State Bar Court Reorganization Act
Text of Proposed Law
(1)
The hearing departments of the State Bar Court are reconstituted as departments
of the California Superior Court.
(2) The review department of the State Bar Court is reconstituted as a department of the California Court of Appeals.
(3) All other activities of the California State Bar remain unchanged by this enactment.
(4) The State Bar of California shall forward annually to the State of California that portion of its income required for operation of the attorney discipline departments, in a sum to be determined each year by the Legislature as set forth in the annual Bar dues bill.
(5) The Superior Court and Court of Appeals judges and clerks that determine attorney discipline matters shall be the exclusive employees of the California Superior Court and Court of Appeals as set forth in paragraphs (1) and (2) above, and shall be appointed, elected and/or re-elected, and compensated in the same manner as all other judges and their clerks of the California Superior Court and Court of Appeals.
(6) The Superior Court departments that hear attorney discipline matters shall remain in the cities of San Francisco and Los Angeles unless changed by the Legislature.
(7) The department of the Court of Appeals that hears attorney discipline matters shall travel between San Francisco and Los Angeles to hear oral argument unless changed by the Legislature.
(8) The respondent in an attorney discipline matter is entitled to a four-person jury at the respondent's request. The jury shall be chosen from the regular jury pool of the Superior Court in the city in which the attorney discipline hearing department is located. The respondent shall pay the jury fees. A three-quarter vote of the jury shall be dispositive.
(9) Attorney discipline matters are deemed civil in nature. All laws, rules and procedures applicable to civil matters in the California Superior Court and Court of Appeals apply. The exceptions are:
(A) The findings are limited to culpability or non-culpability in regard to the filed disciplinary charges.
(B) The penalties are limited to disbarment, suspension, public reproval, or private reproval.
(C) Rules and procedures shall be enacted to protect the attorney-client privilege, client confidentiality, and client privacy rights including, but not limited to, sealing records, closing hearings, and excluding evidence.
(D) Discipline matters stand alone and may not be joined to, or combined with, any other civil or criminal matter.
(10) The published and unpublished opinions of the previous State Bar Court are advisory only and are not binding in the Superior Court or Court of Appeals. The published opinions of the California Supreme Court regarding attorney discipline matters are binding on the Superior Court and Court of Appeals in the same manner as all other published opinions of the California Supreme Court.
(2) The review department of the State Bar Court is reconstituted as a department of the California Court of Appeals.
(3) All other activities of the California State Bar remain unchanged by this enactment.
(4) The State Bar of California shall forward annually to the State of California that portion of its income required for operation of the attorney discipline departments, in a sum to be determined each year by the Legislature as set forth in the annual Bar dues bill.
(5) The Superior Court and Court of Appeals judges and clerks that determine attorney discipline matters shall be the exclusive employees of the California Superior Court and Court of Appeals as set forth in paragraphs (1) and (2) above, and shall be appointed, elected and/or re-elected, and compensated in the same manner as all other judges and their clerks of the California Superior Court and Court of Appeals.
(6) The Superior Court departments that hear attorney discipline matters shall remain in the cities of San Francisco and Los Angeles unless changed by the Legislature.
(7) The department of the Court of Appeals that hears attorney discipline matters shall travel between San Francisco and Los Angeles to hear oral argument unless changed by the Legislature.
(8) The respondent in an attorney discipline matter is entitled to a four-person jury at the respondent's request. The jury shall be chosen from the regular jury pool of the Superior Court in the city in which the attorney discipline hearing department is located. The respondent shall pay the jury fees. A three-quarter vote of the jury shall be dispositive.
(9) Attorney discipline matters are deemed civil in nature. All laws, rules and procedures applicable to civil matters in the California Superior Court and Court of Appeals apply. The exceptions are:
(A) The findings are limited to culpability or non-culpability in regard to the filed disciplinary charges.
(B) The penalties are limited to disbarment, suspension, public reproval, or private reproval.
(C) Rules and procedures shall be enacted to protect the attorney-client privilege, client confidentiality, and client privacy rights including, but not limited to, sealing records, closing hearings, and excluding evidence.
(D) Discipline matters stand alone and may not be joined to, or combined with, any other civil or criminal matter.
(10) The published and unpublished opinions of the previous State Bar Court are advisory only and are not binding in the Superior Court or Court of Appeals. The published opinions of the California Supreme Court regarding attorney discipline matters are binding on the Superior Court and Court of Appeals in the same manner as all other published opinions of the California Supreme Court.
Analysis
Purpose of the Bill
This bill abolishes the California State Bar Court, which is currently operated by the State Bar of California, and places its functions within the auspices of the Superior Court of California and the California Court of Appeals. All other functions of the California State Bar remain unchanged.
History
The State Bar of California (the "Bar") is a California public corporation that is self-funding through its collection of annual member dues, application fees, and some additional revenues received from the collection of fees charged to lawyers that are publicly disciplined by the Bar.
In 1989, the Legislature changed the State Bar Court from a system that once relied on volunteer lawyers to a professional court that utilizes and pays the salaries of seven State Bar Court judges. The judges are chosen through a nomination and appointment process, but they are not answerable directly to the public through a ballot process as are the judges of the Superior and Appellate courts, or the justices of the California Supreme Court.
The salaries of the State Bar Court judges are paid directly by the Bar, as are the salaries of the Bar's discipline prosecutors (the "Office of Chief Trial Counsel"). The entire discipline system consumes about 75% of the Bar's annual budget.
Bases for Change
The Bar states on its website, "California is the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases." This statement is incorrect.
As noted above, after appointment, the State Bar Court judges become paid employees of the Bar, which also pays the prosecutors. The Bar is primarily a prosecutorial organization that must demonstrate that it is fulfilling its public protection mandate by showing an adequate number of discipline convictions in its annual discipline report. This places the State Bar Court judges under similar pressures. This is akin to a situation if Superior Court judges were to become the paid employees of their county District Attorney offices, a situation that we would find intolerable under our system of justice.
This obvious conflict-of-interest is the primary reason that no other state has adopted California's model, and why California remains alone in using it today. The principal architect of the professional Bar Court system in 1989, Robert Fellmeth, has recently stated his opinion that this aspect of the Bar Court that he helped design is indeed problematic, and today he recommends changing it.
This conflict-of-interest has been harming the public in a variety of ways. Leading ethicists, such as professor Peter Keane of Golden Gate University Law School and former vice President of the Bar, points out that the situation creates a situation of the "fox guarding the henhouse." The Legislature has made attempts to avoid this problem by requiring the appointment of six non-lawyers to the 19-person Board of Trustees, but these part-time volunteers, though sincere, are barely able to come up to speed on the issues and form coalitions on the Board before their staggered three-year terms expire.
Another leading ethicist, Hastings Law School professor Richard Zitrin, published his opinion in recent years that the Bar is insular, and that its prosecutions are often aimed at lawyers who are "outliers" or controversial. Others have noted an unbroken trend in Bar prosecutions of pursuing sole practitioners and small firm attorneys, leaving unprosecuted large-firm attorneys who participate in Bar activities, charities, and leadership. One consequence of this has been an increased need for business clients of large-firm attorneys to resolve their disputes with their attorneys through civil court actions. Another consequence has been the elimination of lawyers over minor disciplinary matters who have pioneered such things as sexual harassment law, father's rights, and anti-judicial corruption laws. Through these actions, the Bar has also reduced the number of consumer attorneys that most Californians rely on for lower-cost legal services, making it more difficult for Californians of moderate means to afford legal representation.
California leaders on both sides of the political aisle have attempted to solve these problems in several ways during the past few decades. Democrats such as John Burton and Willie Brown introduced legislation at different times to try to guarantee due process in Bar disciplinary proceedings, but the effect of this legislation has been minimal due to the inherent conflict-of-interest built into the system as described earlier. Republican governors such as Pete Wilson and Arnold Schwarzenegger vetoed Bar dues bills in the past citing such things as Bar dishonesty and overreaching.
The Bar's most recent and current scandal is the firing of its executive director Joe Dunn at the beginning of 2015, followed weeks later by the firing of the Bar's in-house counsel. Mr. Dunn's wrongful termination lawsuit against the Bar is now pending, and Mr. Dunn has publicly accused the Chief Trial Counsel of falsifying statistics. Mr. Dunn was well-known in the past for his criticism of a number of individuals in the prosecutor's office and firing some them. Other employees who have run afoul of the Bar's prosecutorial arm, including the State Bar Court's first professional presiding judge, lost their jobs because their lack of true independence prevented them from being able to effect internal reforms.
The State Bar is officially an administrative arm of the California Supreme Court. The Supreme Court, however, is composed of only seven justices who must deal with judicial matters involving a state with a population of 39 million people. When a legislative effort was made several decades ago to move the State Bar Court to the Administrative Office of the Courts so that it would be truly independent of the State Bar and its prosecutors, the Chief Justice at that time rejected the idea because the Supreme Court was too busy to accept such an extra burden. Today, the California Supreme Court continues to have difficulty meeting its extra administrative duties as demonstrated by a new scandal involving the Judicial Council. The Recorder (San Francisco's legal newspaper of record) reported on January 7, 2015:
"California's state auditor issued a damning audit of the judiciary on Wednesday, concluding in a 90-page report that branch leaders failed to adequately oversee an administration that spent lavishly on staff salaries, benefits and consultants while local courts' budgets were slashed."
The Chief Justice, who sits as the chair of the Judicial Council, is ultimately accountable for the actions of the Council just as she is the State Bar. Similar charges of lavish salaries and overspending have been aimed at the State Bar in the past. The Supreme Court does not have the capacity to oversee those agencies adequately, and so their abuses and excesses go uncontrolled for long periods of time until corrected by the legislative or executive branches through audits or legislation.
The individuals who decide Bar discipline cases, namely the discipline judges, need to be separated from these conflicts-of-interest, upheavals and scandals which are repeat occurrences in the organization. Attorneys are officers of the court, and they play a vital role in the quality of justice that Californians receive in our court system. The manner in which lawyers are disciplined has a significant impact on the public.
Reconstituting the departments of the State Bar Court as departments of the California Superior and Appellate Courts will bring immediate and long-lasting improvement to the state's attorney regulatory system in the following ways:
(1) The discipline judges will become answerable directly to the public at the ballot box like all other Superior Court and Appellate court judges and justices.
(2) The judges will be immediately separated from the pressures, scandals, and conflicts-of-interest that repeatedly plague the Bar.
(3) The judges will no longer be employees of an organization that is also part trade guild, and they will no longer be perceived as part of a "fox guarding the henhouse" situation.
(4) This change will satisfy the California Constitutional requirement that attorney regulation and discipline remain within the judicial branch of government. The California Supreme Court will remain the final court of appeal with the ability to accept or reject discipline petitions as it does now.
(5) The judges will generally be more qualified to determine attorney discipline cases because most judges will have been attorneys themselves, and more of them will be likely to have had judicial experience before serving or being rotated into an attorney discipline department. They will know better what attorneys are supposed, and not supposed, to do.
(6) The California court system is already well-established, and there will be no need to create a new court system. The Superior Court already divides itself into specialized departments such as family law, guardianships, probate, etc. It will be a simple matter to add one more department: attorney discipline. These will be limited to the same cities where the State Bar Court departments operate now, namely Los Angeles and San Francisco, unless or until the Legislature determines otherwise.
(7) As discussed below, there will be no added financial burden to the people of California.
Small Jury System
At present, juries are not permitted in attorney discipline matters. The same is true of other licensed professions in California which are typically overseen by the Department of Consumer Affairs (the "DCA"), and discipline is prosecuted by the California Attorney General's office ("AG"), which are all under the executive branch. Hearings are conducted by administrative law judges who are not employees of the Attorney General. Serious proposals have been made to transfer the State Bar to the DCA to be operated in a manner similar to the Medical Board, with discipline prosecution handled by the AG's office. Doing so would require an amendment to the California Constitution which currently places attorney regulation and discipline exclusively within the judicial branch of government.
This bill leaves attorney regulation and discipline within the judicial branch. It adds the right for an accused attorney to invoke a small 4-person jury in a discipline case for the following reasons:
The California constitution states, "Trial by jury is an inviolate right and shall be secured to all...." Loss or suspension of a professional license will, in most cases, result in a significant deprivation of income by the state.
Many discipline cases are the result of judges making complaints about the lawyer to the Bar, or the automatic reporting of a lawyer to the Bar when there is a high sanction ordered against the lawyer. History has shown that disputes between lawyers and judges, including over significant matters like judicial misconduct and judicial conflicts-of-interest, often result in severe discipline against the lawyer, even when another court later finds that the lawyer was correct. This problem has been perpetuated, in part, by the fact that there is a revolving door between the State Bar and the Judicial Council: individuals serving in one sometimes then move to the other. The Judicial Council, of course, exists to look out for the welfare of judges. It is especially in discipline cases like this that the public has a high stake in the outcome because of the public benefit that the crusading lawyer may have been trying to pursue. A small four-person jury chosen from a regular Superior Court jury pool will provide an important buffer to help ensure fairness in these types of difficult discipline cases.
The extra burden on the discipline system will be negligible:
(1) Choosing a four-person jury and giving them instructions will not add a great deal of time to a discipline trial. A jury finding and discipline recommendation will save the trial judge from needing to write up a detailed discipline finding as State Bar judges do now.
(2) Most respondents will probably not opt for juries, especially if they are culpable in regard to the charges against them, or substantially so. Most attorneys understand that members of the publicly would not be generally prone to look kindly on a lawyer who has committed misconduct.
(3) A respondent requesting a jury will pay the fees.
(4) When a jury is invoked, the public will become intimately involved in the attorney discipline process more than it has ever been allowed to do before.
(4) The Superior Courts already have an effective jury summoning system in place. There will be little extra burden to occasionally send a small number of potential jurors to a Superior Court's discipline department.
Other Provisions
The other provisions of this bill are intended to clarify the nature of the proceedings, and which laws and rules are applicable. These will ensure greater uniformity to the proceedings, while at the same time preserve the same forms of discipline presently used in attorney discipline cases.
Fiscal Impact
This bill will impose no extra burden on the taxpayers of California.
By statute, the State Bar Court judges presently earn 10% less than Superior Court judges, except the presiding judge of the State Bar Court who earns an equal sum. This bill will require that all judges of the newly reconstituted discipline departments be paid an equal amount as their peers in the Superior and Appellate Courts, and enjoy the same benefits.
This bill will marginally increase the salaries and benefits of only seven judges, plus their direct clerks and staff. California presently employs over 2,000 assorted judges, commissioners, and hearing officers. Seven additional discipline judges will be a very modest addition. They and their immediate staff will need to be provided with courtrooms and office space. Where such is not immediately available in a present courthouse in San Francisco or Los Angeles, space will need to be rented. That space can be leased at fair market value from the State Bar buildings where the Bar courtrooms are presently located, at least until regular courtroom space opens up.
These extra costs (minor salary and benefits increases, plus courtroom and office space) are estimated to increase the operating expenses by no more than $1 million per year over-and-above what the Bar presently spends to employ and provide space to these employees. If we use a round number of 200,000 dues-paying State Bar members (the Bar places a current estimate of over 249,000), the extra cost would mean increasing each member's annual bar dues by no more than $5.00. That extra $5.00 is a worthwhile investment by each Bar member to improve the quality of the lawyer discipline system not only for the immediate benefit of the public, but for every member of the profession, as well, who might one day face disciplinary charges. This $5.00 can be added as a supplemental charge to the annual dues statement, or as a dues increase. In the alternative, the Bar can seek ways to cut $1 million in costs from its annual budget, which is presently about $64 million.
These budgetary decisions will be reflected in the annual Bar dues bill that must pass through the Legislature and Governor's office. Future dues bill will continue to state how much the Bar will charge its members, and state the dollar amount that the Bar will forward that year to the State of California for operation of the attorney discipline departments in its regular Superior and Appellate courts. In this manner, the discipline departments will continue to be fully subsidized by the lawyers of California just as the State Bar Court is today.
This bill abolishes the California State Bar Court, which is currently operated by the State Bar of California, and places its functions within the auspices of the Superior Court of California and the California Court of Appeals. All other functions of the California State Bar remain unchanged.
History
The State Bar of California (the "Bar") is a California public corporation that is self-funding through its collection of annual member dues, application fees, and some additional revenues received from the collection of fees charged to lawyers that are publicly disciplined by the Bar.
In 1989, the Legislature changed the State Bar Court from a system that once relied on volunteer lawyers to a professional court that utilizes and pays the salaries of seven State Bar Court judges. The judges are chosen through a nomination and appointment process, but they are not answerable directly to the public through a ballot process as are the judges of the Superior and Appellate courts, or the justices of the California Supreme Court.
The salaries of the State Bar Court judges are paid directly by the Bar, as are the salaries of the Bar's discipline prosecutors (the "Office of Chief Trial Counsel"). The entire discipline system consumes about 75% of the Bar's annual budget.
Bases for Change
The Bar states on its website, "California is the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases." This statement is incorrect.
As noted above, after appointment, the State Bar Court judges become paid employees of the Bar, which also pays the prosecutors. The Bar is primarily a prosecutorial organization that must demonstrate that it is fulfilling its public protection mandate by showing an adequate number of discipline convictions in its annual discipline report. This places the State Bar Court judges under similar pressures. This is akin to a situation if Superior Court judges were to become the paid employees of their county District Attorney offices, a situation that we would find intolerable under our system of justice.
This obvious conflict-of-interest is the primary reason that no other state has adopted California's model, and why California remains alone in using it today. The principal architect of the professional Bar Court system in 1989, Robert Fellmeth, has recently stated his opinion that this aspect of the Bar Court that he helped design is indeed problematic, and today he recommends changing it.
This conflict-of-interest has been harming the public in a variety of ways. Leading ethicists, such as professor Peter Keane of Golden Gate University Law School and former vice President of the Bar, points out that the situation creates a situation of the "fox guarding the henhouse." The Legislature has made attempts to avoid this problem by requiring the appointment of six non-lawyers to the 19-person Board of Trustees, but these part-time volunteers, though sincere, are barely able to come up to speed on the issues and form coalitions on the Board before their staggered three-year terms expire.
Another leading ethicist, Hastings Law School professor Richard Zitrin, published his opinion in recent years that the Bar is insular, and that its prosecutions are often aimed at lawyers who are "outliers" or controversial. Others have noted an unbroken trend in Bar prosecutions of pursuing sole practitioners and small firm attorneys, leaving unprosecuted large-firm attorneys who participate in Bar activities, charities, and leadership. One consequence of this has been an increased need for business clients of large-firm attorneys to resolve their disputes with their attorneys through civil court actions. Another consequence has been the elimination of lawyers over minor disciplinary matters who have pioneered such things as sexual harassment law, father's rights, and anti-judicial corruption laws. Through these actions, the Bar has also reduced the number of consumer attorneys that most Californians rely on for lower-cost legal services, making it more difficult for Californians of moderate means to afford legal representation.
California leaders on both sides of the political aisle have attempted to solve these problems in several ways during the past few decades. Democrats such as John Burton and Willie Brown introduced legislation at different times to try to guarantee due process in Bar disciplinary proceedings, but the effect of this legislation has been minimal due to the inherent conflict-of-interest built into the system as described earlier. Republican governors such as Pete Wilson and Arnold Schwarzenegger vetoed Bar dues bills in the past citing such things as Bar dishonesty and overreaching.
The Bar's most recent and current scandal is the firing of its executive director Joe Dunn at the beginning of 2015, followed weeks later by the firing of the Bar's in-house counsel. Mr. Dunn's wrongful termination lawsuit against the Bar is now pending, and Mr. Dunn has publicly accused the Chief Trial Counsel of falsifying statistics. Mr. Dunn was well-known in the past for his criticism of a number of individuals in the prosecutor's office and firing some them. Other employees who have run afoul of the Bar's prosecutorial arm, including the State Bar Court's first professional presiding judge, lost their jobs because their lack of true independence prevented them from being able to effect internal reforms.
The State Bar is officially an administrative arm of the California Supreme Court. The Supreme Court, however, is composed of only seven justices who must deal with judicial matters involving a state with a population of 39 million people. When a legislative effort was made several decades ago to move the State Bar Court to the Administrative Office of the Courts so that it would be truly independent of the State Bar and its prosecutors, the Chief Justice at that time rejected the idea because the Supreme Court was too busy to accept such an extra burden. Today, the California Supreme Court continues to have difficulty meeting its extra administrative duties as demonstrated by a new scandal involving the Judicial Council. The Recorder (San Francisco's legal newspaper of record) reported on January 7, 2015:
"California's state auditor issued a damning audit of the judiciary on Wednesday, concluding in a 90-page report that branch leaders failed to adequately oversee an administration that spent lavishly on staff salaries, benefits and consultants while local courts' budgets were slashed."
The Chief Justice, who sits as the chair of the Judicial Council, is ultimately accountable for the actions of the Council just as she is the State Bar. Similar charges of lavish salaries and overspending have been aimed at the State Bar in the past. The Supreme Court does not have the capacity to oversee those agencies adequately, and so their abuses and excesses go uncontrolled for long periods of time until corrected by the legislative or executive branches through audits or legislation.
The individuals who decide Bar discipline cases, namely the discipline judges, need to be separated from these conflicts-of-interest, upheavals and scandals which are repeat occurrences in the organization. Attorneys are officers of the court, and they play a vital role in the quality of justice that Californians receive in our court system. The manner in which lawyers are disciplined has a significant impact on the public.
Reconstituting the departments of the State Bar Court as departments of the California Superior and Appellate Courts will bring immediate and long-lasting improvement to the state's attorney regulatory system in the following ways:
(1) The discipline judges will become answerable directly to the public at the ballot box like all other Superior Court and Appellate court judges and justices.
(2) The judges will be immediately separated from the pressures, scandals, and conflicts-of-interest that repeatedly plague the Bar.
(3) The judges will no longer be employees of an organization that is also part trade guild, and they will no longer be perceived as part of a "fox guarding the henhouse" situation.
(4) This change will satisfy the California Constitutional requirement that attorney regulation and discipline remain within the judicial branch of government. The California Supreme Court will remain the final court of appeal with the ability to accept or reject discipline petitions as it does now.
(5) The judges will generally be more qualified to determine attorney discipline cases because most judges will have been attorneys themselves, and more of them will be likely to have had judicial experience before serving or being rotated into an attorney discipline department. They will know better what attorneys are supposed, and not supposed, to do.
(6) The California court system is already well-established, and there will be no need to create a new court system. The Superior Court already divides itself into specialized departments such as family law, guardianships, probate, etc. It will be a simple matter to add one more department: attorney discipline. These will be limited to the same cities where the State Bar Court departments operate now, namely Los Angeles and San Francisco, unless or until the Legislature determines otherwise.
(7) As discussed below, there will be no added financial burden to the people of California.
Small Jury System
At present, juries are not permitted in attorney discipline matters. The same is true of other licensed professions in California which are typically overseen by the Department of Consumer Affairs (the "DCA"), and discipline is prosecuted by the California Attorney General's office ("AG"), which are all under the executive branch. Hearings are conducted by administrative law judges who are not employees of the Attorney General. Serious proposals have been made to transfer the State Bar to the DCA to be operated in a manner similar to the Medical Board, with discipline prosecution handled by the AG's office. Doing so would require an amendment to the California Constitution which currently places attorney regulation and discipline exclusively within the judicial branch of government.
This bill leaves attorney regulation and discipline within the judicial branch. It adds the right for an accused attorney to invoke a small 4-person jury in a discipline case for the following reasons:
The California constitution states, "Trial by jury is an inviolate right and shall be secured to all...." Loss or suspension of a professional license will, in most cases, result in a significant deprivation of income by the state.
Many discipline cases are the result of judges making complaints about the lawyer to the Bar, or the automatic reporting of a lawyer to the Bar when there is a high sanction ordered against the lawyer. History has shown that disputes between lawyers and judges, including over significant matters like judicial misconduct and judicial conflicts-of-interest, often result in severe discipline against the lawyer, even when another court later finds that the lawyer was correct. This problem has been perpetuated, in part, by the fact that there is a revolving door between the State Bar and the Judicial Council: individuals serving in one sometimes then move to the other. The Judicial Council, of course, exists to look out for the welfare of judges. It is especially in discipline cases like this that the public has a high stake in the outcome because of the public benefit that the crusading lawyer may have been trying to pursue. A small four-person jury chosen from a regular Superior Court jury pool will provide an important buffer to help ensure fairness in these types of difficult discipline cases.
The extra burden on the discipline system will be negligible:
(1) Choosing a four-person jury and giving them instructions will not add a great deal of time to a discipline trial. A jury finding and discipline recommendation will save the trial judge from needing to write up a detailed discipline finding as State Bar judges do now.
(2) Most respondents will probably not opt for juries, especially if they are culpable in regard to the charges against them, or substantially so. Most attorneys understand that members of the publicly would not be generally prone to look kindly on a lawyer who has committed misconduct.
(3) A respondent requesting a jury will pay the fees.
(4) When a jury is invoked, the public will become intimately involved in the attorney discipline process more than it has ever been allowed to do before.
(4) The Superior Courts already have an effective jury summoning system in place. There will be little extra burden to occasionally send a small number of potential jurors to a Superior Court's discipline department.
Other Provisions
The other provisions of this bill are intended to clarify the nature of the proceedings, and which laws and rules are applicable. These will ensure greater uniformity to the proceedings, while at the same time preserve the same forms of discipline presently used in attorney discipline cases.
Fiscal Impact
This bill will impose no extra burden on the taxpayers of California.
By statute, the State Bar Court judges presently earn 10% less than Superior Court judges, except the presiding judge of the State Bar Court who earns an equal sum. This bill will require that all judges of the newly reconstituted discipline departments be paid an equal amount as their peers in the Superior and Appellate Courts, and enjoy the same benefits.
This bill will marginally increase the salaries and benefits of only seven judges, plus their direct clerks and staff. California presently employs over 2,000 assorted judges, commissioners, and hearing officers. Seven additional discipline judges will be a very modest addition. They and their immediate staff will need to be provided with courtrooms and office space. Where such is not immediately available in a present courthouse in San Francisco or Los Angeles, space will need to be rented. That space can be leased at fair market value from the State Bar buildings where the Bar courtrooms are presently located, at least until regular courtroom space opens up.
These extra costs (minor salary and benefits increases, plus courtroom and office space) are estimated to increase the operating expenses by no more than $1 million per year over-and-above what the Bar presently spends to employ and provide space to these employees. If we use a round number of 200,000 dues-paying State Bar members (the Bar places a current estimate of over 249,000), the extra cost would mean increasing each member's annual bar dues by no more than $5.00. That extra $5.00 is a worthwhile investment by each Bar member to improve the quality of the lawyer discipline system not only for the immediate benefit of the public, but for every member of the profession, as well, who might one day face disciplinary charges. This $5.00 can be added as a supplemental charge to the annual dues statement, or as a dues increase. In the alternative, the Bar can seek ways to cut $1 million in costs from its annual budget, which is presently about $64 million.
These budgetary decisions will be reflected in the annual Bar dues bill that must pass through the Legislature and Governor's office. Future dues bill will continue to state how much the Bar will charge its members, and state the dollar amount that the Bar will forward that year to the State of California for operation of the attorney discipline departments in its regular Superior and Appellate courts. In this manner, the discipline departments will continue to be fully subsidized by the lawyers of California just as the State Bar Court is today.