Friday, January 21, 2011
Consumer Advocate Calls for Major Structural State Bar Changes
Local Bar Leaders Dispute Fellmeth’s Complaint That Currrent Setup Inadequately Protects Public
By KENNETH OFGANG, Staff Writer
The State Bar should be significantly restructured, with its role as professional association severed from its regulatory function and a majority of its governing board appointed by the state Supreme Court, a well-known consumer advocate told a task force yesterday.
“The bar should be run the same way that other state agencies are run,” Robert Fellmeth told the State Bar Governance Task Force at a public hearing at the organization’s Los Angeles headquarters.
The task force was created pursuant to a provision in last year’s dues bill. It is made up of 10 Board of Governors members—seven attorneys and three public members—appointed by the State Bar president, plus five State Bar officials who serve ex-officio.
State Bar President William Hebert is the task force chair.
Fellmeth, who is the executive director of the Center for Public Interest Law at the University of San Diego School of Law and served in the legislatively created position of State Bar discipline monitor from 1987 to 1992, said the current disciplinary system is “among the best in the country.”
But the State Bar needs to address broader public protection issues, he said, and can best do so if it takes on a regulatory structure similar to that of the bodies that regulate other businesses and professions.
While the board as currently structured does “many things that are laudable,” Fellmeth said, “we are all prisoners of our own tribal rules.” He cited several instances in which he felt the board had failed to serve the public, including the lengthy debate that preceded the adoption of a rule requiring attorneys to disclose to clients whether they have malpractice insurance, rejection of a mandate that all attorneys carry professional liability coverage; the lack of a requirement that attorneys be periodically re-licensed, and failure to adopt the Bagley-Keene Act, which is the open-government law for state agencies.
In addition to ending the 84-year-old integration of the regulatory and promotional functions—which he called the “divestiture of the cartel”—and eliminating the election of board members by attorneys, Fellmeth proposed other structural changes.
He suggested that attorney members be allowed to serve two four-year terms, in place of a single three-year term as at president; that the president’s term be increased from one year to two, and that a system in which a president-elect understudies the president for one term and then takes over be considered.
A number of task force members told Fellmeth they saw problems with his approach.
“No attorney I know is going to want to be president for two years” because of the amount of work involved, Wells Lyman, an attorney from San Diego County, commented. Fellmeth replied that he had spoken to many past presidents and that they have been “frustrated” by the one-year term. He said there were probably many competent attorneys who would accept a two-year mandate, “particularly if you’ve been appointed by the state Supreme Court.”
Angela Davis, a board member from Los Angeles, said that while the board’s rules provide for public access similar to that enjoyed under Bagley-Keene, difficulties might arise if the statute were made fully applicable. It would, for example, prevent members who could not attend from participating by conference call from their homes or offices, or from an airport or other remote location, she said.
That was true, Fellmeth responded, although members could still participate by telephone from a noticed and publicly accessible location.
Michael Tenenbaum, a Ventura County attorney who was elected to the board as a reform advocate, said that there was little to debate about Bagley-Keene, because “as a practical matter we are almost following it now.” And he expressed concern about an appointments process, saying he was not sure that candidates such as himself, coming from outside of the organized bar and advocating change, would be among those selected.
Fellmeth said that the system could be designed to require that attorneys from diverse geographic areas and fields of practice be chosen. “I’m very confident we would get people like you,” he told Tenenbaum.
Representatives of local bar groups made clear that they had no interest in radical change along the lines proposed by Fellmeth.
Los Angeles County Bar Association President Alan K. Steinbrecher said that while the County Bar has had disagreements with the State Bar, “we think the State Bar fulfills its responsibilities to protect the public.” LACBA, he said, believes that “the integrated bar is the regulatory structure best suited” to serve the State Bar’s “core missions” of public protection and public service.”
Mexican-American Bar Association President Victor Acevedo said his group strongly supports election of attorney members. One of Fellmeth’s critiques of the system, that most lawyers do not vote, should not be taken as a sign that they do not support the current system.
Many lawyers, he said, do not have the time to concern themselves with bar activities, or may feel that there is nothing about the current system that they feel the need to fix.
Acevedo also objected to proposals to alter the ratio of lawyer-to-public board members, saying chaos would ensue if public members were able to outvote the attorneys. His comment drew the ire of Dennis Mangers, one of the three public members of the task force.”
That view “is not standing the test of reason with me,” Mangers said. One need not be a lawyer, he insisted, to understand the nature of the issues the State Bar deals with.
Mangers told the MetNews, during a break in the proceedings, that he is not committed to a change in the membership ratios, and will not take any firm stances until he has heard all sides of all issues, but that he felt Acevedo’s comment required a response.
Neither of the other local bar presidents who spoke yesterday, Stephen Raucher of the Beverly Hills Bar Association and Seymour Amster of the San Fernando Valley Bar Association, endorsed any major restructuring, but Amster urged creation of a separate Board of Governors district for the San Fernando Valley.
Amster said the valley’s large population and legal community justify permanent representation on the board. But Luis Rodriguez, a board member from Los Angeles, noted that he and fellow board member Gretchen Nelson had met with the SFVBA while campaigning for their seats, and said they were always accessible to local bar leaders with State Bar issues.
He also noted that valley bar leaders have had the change to run for the Board of Governors in past years and none has.
Copyright 2011, Metropolitan News Company