The State Senate Should Have No Role in Operations of the State Bar

Wednesday, August 3, 2011

Page 6

IN MY OPINION (Column)

The State Senate Should Have No Role in Operations of the State Bar

By GERT K. HIRSCHBERG

(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.)

October 20, 1973 is firmly entrenched in our history books as the anniversary of the Saturday Night Massacre. That was the evening when in the midst of the Watergate scandal, President Richard Nixon fired the independent special prosecutor, Archibald Cox, causing the immediate resignations of the Attorney General, Elliot Richardson and Deputy Attorney General, William Ruckelshaus.

The State Bar of California had its own massacre on July 6, 2011 when it fired unceremoniously Deputy Chief Trial Counsel Russell Weiner, Assistant Chief Trial Counsel Victoria Malloy, Djinna Gochis and Nancy J. Watson. Thus, in one fell swoop, the prosecutorial arm of the State Bar’s Office of Chief Trial Counsel, leaderless already since the resignation of Chief Trial Counsel James E. Towery, was decimated. These being personnel decisions, apparently the Brown Act (Government Code 54950 et seq) does not apply. Do rules of fairness and decency?

The plight of the recently laid off judicial commissioners is similar, but not identical. Their discharge, although unprecedented and unexpected, was to an extent forewarned and based upon legitimate (economic) reasons. Unilateral economically based employment terminations are always painful. If unanticipated, they can be devastating.

How much more so can it be painful when it affects a middle-aged governmental employee. Former Justice Kaufman, in dissent on a related issue, in Foley v. Interactive Data Corp, 47 Cal. 2d, 654, 254 Cal. Rptr. 211 commented with eloquence so common and typical for the Supreme Court of California: “What market is there for the factory worker laid-off after 25 years of labor in the same plant, or for the middle-aged executive fired after 25 years with the same firm?”

Wrote Justice Broussard in concurrence therewith: “A man or a woman usually does not enter into employment solely for the money; a job is status, reputation, a way of defining one’s self worth and worth in the community. It is also essential to financial security, offering assurance of future income to repay present debts and future obligations...in a modern industrialized economy, employment is central to one’s existence and dignity.”

The executive director of the State Bar has not seen fit to articulate the reasons for the firings of these State Bar officials. We do know they were hardworking, quasi-supervisorial employees who had served the State Bar for many years and whose performance was flawless. The rumor mill has never been fuller. The most common rumor has it that the recently departed Chief Trial Counsel was bound to be rejected by the California Senate within the one-year probationary period, which is the maximum period required for approval. Hence, he resigned. What all this amounts to is that the Executive Director and the senate want to go in a different direction. Backlog in disciplinary cases has always been a very appealing excuse, whether in justification of personnel decisions or other changes. It goes back to the firings of John Malone and Lily Barry, or the destruction of the State Bar volunteer system.

There is no justification at all for the requirement that the senate has to approve the appointment of the Bar’s chief prosecutor. Nor is there any reason why the appointed Executive Director of the State Bar should make and exercise these life and death decisions. The State Bar is an administrative agency of the judicial branch of the state government. The senate is no part of it.

The State Bar should be governed by its elected Board of Governors, superseded by the Supreme Court and its administrative branch, the Administrative Office of the Courts. The state senate should play no part. To say otherwise is a usurpation. That is the function of the Board of Governors and the Supreme Court.