Public in Legal Limbo as Efforts to Revive the Bar Founder

County bar officers in Riverside are struggling to cope with charges of professional misconduct against attorney Carole Gearhart. Her alleged abandonment of clients in bankruptcy cases may have led to one of them losing her home.

The State Bar of California has told Riverside that budgetary cutbacks have left it unable to act on Gearhart’s case.

In Los Angeles, 75 of the 624 clients of attorney Thomas V. Girardi in the Lockheed toxic pollution cases have sent complaints to the bar and Gov. Pete Wilson, accusing Girardi of failing to inform them how much has been received in 20 settlements, or how much he was taking in attorney’s fees.

The state bar is unable to review the Girardi matter, as well, and it is not the governor’s function to do so. So this complaint against one of the state’s most successful litigators is in limbo.

In fact, according to Bar Executive Director Steve Nissen, more than 5,000 other complaints against California’s 130,000 active attorneys are stalled.

The bar’s disciplinary court is only a skeleton of what it was. All but 20 of its 283 investigators and prosecutors have been fired. Only 10 of its 61 court personnel remain.

It’s all a consequence of Wilson’s veto last October of legislation allowing annual bar dues of $458. The bar was left with an authorization to collect from each active attorney only $77.

This means, Nissen says, that the amount available for the bar’s disciplinary functions has shrunk from $35 million to $3.8 million a year, slashing the number of complaints that can be heard to only a tiny minority of those made.

On Aug. 31, the Legislature ended its annual session without voting on a compromise that would have restored substantial bar funding in exchange for the bar’s board of governors becoming appointive rather than elected.

Wilson would have had seven appointments, the state Supreme Court nine, and the Legislature four.

This would have transferred the bar from liberal to conservative control.

USC law professor Erwin Chemerinsky comments, “I think that this political impasse is one of the most irresponsible things I’ve seen government do. It’s essential that there be a disciplinary function in the bar to protect the people of the state from unscrupulous, incompetent or unethical lawyers.”

I agree, in part. But in looking into this matter for the past week, I also came to feel that Senate President Pro Tem John Burton (D-San Francisco) was right in deciding to pull the plug on the compromise negotiated with Wilson. He ordered that it not be considered just hours before the Legislature adjourned.

Burton told me he too has “some real problems with the way the bar operates. . . . Very little bar discipline reaches the big firms.”

Still, he said, passing control to the governor and the justices of the state Supreme Court is not proper.

Wilson’s objectives here may have a little to do with getting revenge for having failed the bar exam the first three times he took it as a young man, for his censure by the bar in a political controversy many years ago, and for the bar’s assertion in 1996 that an appointee of his to the State Supreme Court was unqualified.

But essentially, the governor’s purpose is to move the bar to the right. He is using the antipathy that exists toward lawyers, including the notion that lawyers cannot be trusted to discipline other lawyers, to strike at their control of their own institution.

This probably would not be any gain. Already we see, in the attempt by ideologues in the Commission on Judicial Performance to silence the liberal Court of Appeal jurist J. Anthony Kline, what happens when politics intrudes ever more overtly in the legal system. It introduces unsavory irregularities.

Still, this leaves us with the question of how to fund a revival of the disciplinary procedures, even if they are not perfect.

The stalemate in Sacramento is apt to last at least another year, even if the Democrat, Lt. Gov. Gray Davis, is elected governor, since it will take a two-thirds vote on an urgency clause in the Legislature to make any new compromise effective before Jan. 1, 2000. Republicans will have the votes to block the Democrats’ solution, or vice versa.

Some legal experts, such as Los Angeles attorney Arthur L. Margolis, believe the state Supreme Court could step in and set new bar dues, not as high as before, but high enough to keep the disciplinary functions operating.

“Otherwise, the public is going to be without protection,” Margolis observes. “The issue is the public interest. Almost all the attorneys I’ve talked to are happy there’s been a virtual shutdown. Shouldn’t that in itself be an alarming sign to the public?”

But there is no unanimity that the court can legally step in.

In trying to explore attitudes within the court, I encountered two distinct views.

“The court, because of its hope that the Legislature would act, has not closely studied the issue,” said one court insider.

“There is a precedent that the court could consider down the road whether it wished to exercise its inherent powers. It’s never been done in California, but it has been done in other states.

“The court has to figure out whether it has the power to act, how it would act and whether it desires to act.”

But another insider questioned whether the court could ever act.

“I think all we could do would be to take action in the interest of the administration of justice, to order action against a particular lawyer,” this person said.

“But to order an assessment of dues, I doubt we could act. As a matter of principle, we cannot direct an administrative agency. . . . I see a separation of powers problem.”

Maybe so. But I’d hazard the guess that the high court may finally figure out how it can act to raise the necessary money, out of a perceived “law of necessity.”

Ken Reich can be contacted with your accounts of true consumer adventure at (213) 237-7060, or by e-mail at ken.reich@latimes.com