End Elections to State Bar Board of Trustees

Thursday, August 4, 2016

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End Elections to State Bar Board of Trustees—Task Force

By a MetNews Staff Writer

The State Bar of California—once governed by a board comprised solely of persons elected by the membership—would have no lawyer-elected members, under a recommendation of a task force.

That recommendation is included in a report issued late Tuesday.

Also proposed by the Governance in the Public Interest Task Force, headed by State Bar President David Pasternak, is increasing the number of non-lawyers on the board—there are now six—and trimming the size of the board, now with 18 members and two vacancies, to perhaps 13.

There are presently six lawyers elected by members, in each of the six Court of Appeal districts. Five lawyers are appointed by the California Supreme Court, one by the Senate Rules Committee on and one by the speaker of the Assembly.

Four of the public members are appointed by the governor, one by the Senate Rules Committee, and one by the speaker of the Assembly.

“Despite the challenges facing the State Bar, the agency is in the best hands possible to achieve important reforms,” Pasternak said in a statement accompanying the report. “I will bring the task force’s recommendations to the September Board of Trustees meeting for a vote to take long-overdue action.”

Members of the task force, in addition to Pasternak, were trustees Danette Meyers (vice president-elect), Dennis Mangers, Joanna Mendoza, Danette Meyers, and Gwen Moore. Mangers, a non-attorney, and lawyer Mendoza filed a minority report urging that the State Bar be deunified, over a two-year period.

The State Bar was created in 1927, with membership of all California attorneys being mandated. The “integrated” bar, as it was then denominated, supplanted the California Bar Association, in which membership was voluntary.

The legal profession was entirely self-regulating until 1977, when, by statute, six public members—then referred to as “lay members” were added to the governing body, then the “Board of Governors.”

Under 2011 legislation, there were no longer to be 15 lawyers, elected by the membership but, rather 13 lawyers, only six of whom would be elected.

Report States Reasons

In announcing the proposal for total elimination of elections, the report says:

“Elections of lawyer members of The Board of Trustees can create the appearance of conflicting loyalties, i.e. to the profession or the public. In addition, the election of six trustees may create the appearance of a trade association capable of exerting significant control over the State Bar’s discipline activities. Moreover, potential conflicts can arise when sitting Board members opt to run for reelection and may take position on issues before the Board as a way to enhance their likelihood of election. Replacing elections with appointed positions would address these concerns. Given the modest level of interest among State Bar members in the elections, some argued that such a change would be acceptable because it might not decrease member engagement in the work of the State Bar.”

The report continued:

“In contrast, several Trustees and Task Force members expressed a concern that eliminating elections could compromise all forms of diversity among Trustees on the Board (e.g. practice area and geography, as well as gender, ethnicity, race, background and sexual orientation and identity). The elimination of elections could also send an unfortunate signal about the importance of a democratic structure for State Bar governance. They urged that the level of participation in State Bar elections, not dissimilar from participation in other election activities, not be a decision factor.

“Despite these concerns, a slight majority of Task Force members agreed that election of Trustees should be eliminated. The Task Force also recommended that a mechanism should be developed so that, if an appointment were not made in a specified period of time, the Chief Justice might take responsibility for filling such a vacancy. In addition they urged attention to ensure geographic and demographic diversity on the Board of Trustees under an appointed model paradigm, with the hope that such factors would be meaningfully taken into consideration by appointing entities.”

The report also recommends adding the office of president-elect and lengthening the term of president, currently one year.

Minority Report

The minority report argues:

“[T]he majority’s desire to protect the structural status quo it so effectively indicts makes its report nearly useless. Accordingly, the minority is left with no recourse but to urge the Legislature and the Supreme Court to stop the endless cycle of Task Forces, studies, audits, crisis and critical media coverage by gradually and deliberatively de-coupling the Bars regulatory and advocacy roles over several years, as well as changing the Board governance structure.”

It goes on to assert:

“Every other profession in California is regulated by a body separate from its professional association, and three have public-member majorities. We admire the work of the Bars current management staff and acknowledge some helpful responses of current Board leadership to our criticisms. However, we see no promise these changes will be maintained and many reasons to believe the Board will backslide when the pressure for reform abates. While current staff leaders commitment to a well-managed Bar is plain, no one should stake the future of an important government agency on the career plans of one able management team. History is the best lesson in that regard. Californians deserve a Bar structured for success, rather than a gamble on staffing arrangements that may change. Indeed, without better support for management from the Board, that gamble may be a poor one.”

The State Bar is statutorily obliged to submit the task force report to the Supreme Court of California, Gov. Jerry Brown, and the Senate and Assembly Judiciary Committees.