Jurists Lean Toward Levies on Lawyers to Fund State Bar

SACRAMENTO —  The California Supreme Court appeared inclined Monday to begin levying dues on attorneys to allow the beleaguered State Bar of California to resume policing lawyers.

In an unusual hearing, the justices indicated they believe that the court has legal authority to order lawyers to pay dues until the Legislature can end a yearlong stalemate over the future of the lawyer regulatory agency.

The bar effectively shut down its consumer protection operations in June after Gov. Pete Wilson vetoed a bill to allow it to levy $478 in annual dues on the state’s 130,000 practicing lawyers. Without the revenue from the dues, the bar was forced to lay off 90% of its staff.

The resulting lack of regulation clearly troubled the justices. “How can the public be adequately protected in the absence of any discipline system? I can’t quite fathom that,” Chief Justice Ronald M. George said.

“The Legislature hasn’t acted, and that is why we are here.”

The bar has asked the court to order each lawyer in the state to pay $171 in dues--enough to start getting the disciplinary system back in operation.

Although the justices declined to state how they will vote on the bar petition, their comments during the hearing strongly suggested that they are likely to approve the collection of dues on a stopgap basis until the Legislature acts. The court also seems likely to appoint a special master who would ensure that the bar spends the money only on lawyer discipline.

A decision is expected within the next few weeks. If the court approves the bar petition, lawyers would get their dues bills before the end of the year.

The bar has about 6,557 pending complaints against California lawyers, 2,000 of them filed since the agency announced that it no longer had money to investigate new cases.

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 lawyers it sanctioned in 1997.

Although Wilson will leave office in January and his successor, Gray Davis, has supported the bar, legislative procedures would make it difficult for the Legislature to quickly resolve the stalemate.

Wilson has urged the court to reject the bar’s plea for more dues and take over lawyer discipline itself. The justices, however, seemed reluctant to establish a new discipline agency under the court.

Dan Kolkey, Wilson’s legal affairs secretary, told the court that Wilson vetoed the bar bill because its proposed fees were too high and because he disapproves of the direction of the state bar. Wilson has previously criticized the bar’s leaders for taking politically liberal positions.

If the court were to approve the collection of dues and simply pass them on to the bar, the court would “undo the governor’s veto” and delay reform of the bar, Kolkey said.

“To fund a legislative creation would in our view trespass into the Legislature’s jurisdiction,” he said.

George, however, seemed to disagree. “The court can’t regulate without some mechanism for funding,” he said. He suggested that the least intrusive course for the court would be to help fund the existing discipline system. The dues at issue would pay for prosecution of the most egregious complaints pending.

When Kolkey suggested that the court could ask the Legislature for a supplemental appropriation to pay for lawyer discipline, George noted: “We don’t always get what we ask for.”

Most of the witnesses at the afternoon hearing described a discipline system in crisis, with nearly 7,000 consumer complaints pending against lawyers and no one to investigate or prosecute them.

State Sen. Quentin Kopp (I-San Francisco), a longtime critic of the bar, told the court that it was considering a “political case.”

“The court should be very careful to exercise its inherent power in a way that does not constitute taking one side or the other,” Kopp said, arguing that for the court simply to raise dues for the bar would be to take the bar’s side in the dispute.

But Jerome Falk, representing several local and specialty bar associations, said the money the bar has requested would pay only for the most needed discipline and would “not buy a Cadillac.”

“This is as neutral a way of dealing with this crisis as anything available,” Falk said.

In his veto message last year, Wilson complained that a group of bar delegates had endorsed more racial diversity in law schools, a resolution that the governor said was an attempt to circumvent the state ban on affirmative action.

Wilson also objected to other bar delegate positions, including an endorsement of gay marriages, a ban on discrimination against transvestites and transsexuals, and reduced penalties for child molesters.

The governor’s criticism of the bar is shared by many lawyers. They complain that the bar disciplines solo practitioners and leaves the big firms alone. Critics, including liberal law professors, also have long accused the organization of wasteful spending on excessive staff, lobbyists and extravagant conferences.