State Bar Plans Campaign to Urge Private Judges to Pay Full Dues
CJA President Has Appointed Committee to Address Concerns of Retired Jurists
By DAVID WATSON, Staff Writer
The State Bar of California plans a summer effort to convince retired judges who perform alternative dispute resolution services to become active State Bar members, a bar official said yesterday.
The prospect has sparked concerns among retired judges and prompted the California Judges Association to appoint a committee to look into the issue. Many retired judges who do ADR work are inactive members of the State Bar.
In a March letter to a CJA attorney, State Bar Deputy Executive Director Robert A. Hawley said that although the issue of whether arbitrating or mediating disputes constitutes the practice of law “is a subject that is currently generating debate,” the bar’s position on inactive membership is based on other factors.
State bar rules provide that no member of the bar “occupying a position wherein he or she is called upon to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document, or law” may be enrolled as inactive, Hawley pointed out.
Whether or not ADR is the practice of law, it is “likely” to require retired judges serving as neutrals to “use these skills,” Hawley said.
“This policy has been applied consistently over the years to deny inactive status to member law clerks, paralegals, real estate brokers, certified public accountants, and others....,” Hawley declared.
Starr Babcock, a special assistant to State Bar Executive Director Judy Johnson, said yesterday the State Bar has no plans to act against individual retired judges.
“We are going to begin summer educational campaign with inactives,” Babcock said, adding:
“We could recommend they be suspended, but we’re not doing that.”
Babcock noted that when judges retire, they receive a form letter from the State Bar asking them whether they wish to resume active membership or enroll as inactive. The rule cited by Hawley is part of the materials they received, he said.
Sitting judges by state law are not members of the State Bar.
Babcock pointed out that retired judges who do not wish to become active members also have the option of resigning from the State Bar. Resigning would not bar them from doing ADR work, he said, as long as that work did not constitute the practice of law.
CJA President Eric C. Taylor, a Los Angeles Superior Court judge, said that while the prospect of having to pay full bar membership dues was “of concern to many of our retired judges” and prompted him to appoint a committee, he was convinced it will “become a nonissue.”
“I’m certain in the end the matter will be worked out for everyone,” Taylor said, citing the “very friendly and cooperative relationship” that the CJA enjoys with the State Bar.
San Bernardino Superior Court Judge Mary E. Fuller, a member of the CJA committee, said it has just begun to address the issue. While the matter is on the agenda for the CJA board’s meeting in Sacramento next week, only a brief report on the status of the committee’s work will be given, she said.
Judges have received mixed signals from the State Bar, Fuller asserted, explaining that some retired judges who have called the State Bar report having been told that active membership was not required to do ADR. So far, she said, the committee has concentrated on gathering information from retired judges about the issue.
One option open to the committee would be to suggest that the CJA ask the State Bar establish a special status for retired judges doing ADR work, similar to the status currently enjoyed by referees, hearing officers, and commissioners, Fuller said. State Bar rules permit members “employed in a quasi-judicial capacity” to serve while on inactive status, but only where the employment is with a governmental agency.
But Fuller said it is too soon to know whether the committee will take that course, make some different recommendation, or even make any recommendation at all.
“There are lots of different possibilities,” she said.
The CJA’s immediate past president, Los Angeles Superior Court Judge Gregory C. O’Brien, said the assertion that active membership is required comes as a “huge surprise to most retired bench officers who are acting as mediators and arbitrators.”
He called the State Bar’s position “puzzling,” noting that arbitration is “not a profession that’s restricted” to attorneys, and adding:
“There’s an obvious problem with that.”
General Counsel Jay Welsh of JAMS, a nationwide arbitration and mediation service, said he has met with representatives of the State Bar on behalf of JAMS to discuss the issue. While JAMS is concerned that the State Bar not seek to classify ADR as law practice, it views the issue of whether active membership should be required as best left to the State Bar and the CJA to work out, Welsh said.
“You don’t have to be a lawyer to be either a mediator or an arbitrator,” he said.
Welsh said JAMS has “probably 60 or 70” retired California judges. Few retired judges resume active status unless they plan to practice law, Welsh said.
“Once the CJA issues whatever opinion it is going to give its members, then we will react at that time,” Welsh said.
Lucie Barron, president of ADR Services Inc., said she also believes the issue is unresolved despite the language of Hawley’s letter.
“I think its up for discussion at this point,” Barron said. One there is clear guidance, “we would definitely comply and make sure that our neuctrals comply,” she added.
Hawley’s letter noted that State Bar membership fees are “based upon the cost of administering the State Bar’s regulatory system.” Inactive dues—currently $50, as opposed to over $300 for active members—are based on the assumption that lawyers who “distance themselves from the practice of law entirely” are unlikely to “burden” that system, he said.
“In contrast,” he wrote, “the attorney who ceases the active practice of law, but—examines the law or passes upon the legal effect of any act, document or law, engages in conduct so closely related to the practice of law that demands upon the State Bar’s regulatory jurisdiction are more likely.”
Copyright 2004, Metropolitan News Company