Metropolitan News-Enterprise


Thursday, January 21, 2010


Page 7



Consumer Protection Is Not State Bar’s Main Purpose




Is the State Bar of California a consumer protection agency? No! Consumer protection was and is a secondary purpose. It is also not a labor union. The State Bar is an agency of the California Supreme Court, charged with the task of assisting the court with the admission and disciplining of lawyers. The secondary effect of consumer protection cannot, and should not, be denied. However, it is not the stated and therefore designated purpose of the State Bar.

In the late 1970s and early 1980s, the then-governor of California sought to infuse non-lawyers into the governance of the State Bar and the administration of the disciplinary system. For reasons which I never understood, they were and are still called “public members.” Lawyers, apparently, are not members of the public.

The outcry reverberated in the media. The Board of Governors became a highly publicized battleground. The first appointees by the governor proved to be a feisty bunch, and the sitting lawyer governors proved to be a match. The outcome made for interesting and almost daily journalistic coverage. Fortunately, after a few years, the lawyer governors and the public member governors made peace, and the Bar is better off. During this battle campaign, I was elected and served as a governor of the State Bar, and here is what happened:

A pamphlet was prepared and printed, to be given out at car washes and everywhere: “What You Can Do if Your Attorney’s Conduct Is Inappropriate.” Such an invitation to report lawyers to the State Bar, given out in volume and gratuitously, is hardly in furtherance of the stated principles of the State Bar. The means of distribution targeted neighborhood practitioners and small firms—not the mega law firms. I fought this pamphlet and kept it out of circulation for two years over the combined opposition of the public members and a few of the lawyer members of the Board of Governors.

In the next few years came measures to require attorneys to have written retainer agreements if the fees exceed a certain threshold; another measure was then passed requiring attorneys to disclose their malpractice coverage. While these measures needed the approval of the California Supreme Court—since they became parts of the Business and Professions Code—the obvious anti-attorney animus was evident. The obvious inference drawn from the pamphlet distribution, the requirement of a written contract and the required disclosure of malpractice insurance coverage focuses on a perception that attorneys are dishonorable, negligent, or both. The steps taken by the Supreme Court and the then-public members were akin to a presumption of guilt. I, for one, still trust a lawyer more than I trust a non-lawyer.

I have grave doubts that a Fortune 500 company which engages a mega law firm does so without a written contract or knowing whether said firm is insured. In essence, then, these measures were designed and directed towards the neighborhood attorney who represented a person charged with drunk driving or a litigant in an injury case. To me, the better method is to dictate a letter, in the client’s presence, confirming the retainer agreement. Let it be remembered that the unsophisticated client on his first trip to the lawyer feels insecure in the first place. No one likes to have a written agreement shoved in one’s face in one’s first trip to an unfamiliar law office. If my premise is incorrect, there can still be a retainer contract, but it should not be mandatory.

To sum up: Consumer protection is not advanced by the pamphlet, the retainer contract or the disclosure of insurance. Rather, the retainer agreement and the insurance disclosure requirement spell out in unmistakable fashion that those who sit on the high court and conceived the requirements had never been in the trenches of the small law office.

(The writer is a retired trial lawyer, an American Board of Trial Advocates  member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)


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