This morning, I read an article published in the Los Angeles Daily Journal on March 16, 2018 titled Appellate justice recommends increase in State Bar fee. The article stated in part as follows:
The appellate court justice tasked with monitoring the State Bar's finances called for an increase in the annual fee lawyers pay to fund the agency.
Justice Elwood Lui of the 2nd District Court of Appeal, who the state Supreme Court appointed to oversee the bar's spending in 2017, said a boost in the fee typically set by the Legislature would help the bar address its 'serious financial challenges.'
Active lawyers were required to pay the bar a $315 basic fee this year, and other charges raised the overall mandatory payment to $390.
In his recent report to the Supreme Court on the bar's fourth quarter of 2017, Lui highlighted that the required fee has largely remained the same for two decades while other sources of revenue have dwindled or disappeared.
'A fee increase is long overdue, and I believe the continued postponement of an increase will fundamentally and detrimentally affect the State Bar's ability to discharge its critical public protection functions,' Lui wrote in the report released Thursday....
Lui noted in his report that he plans to disburse an approximately $3.5 million surplus in the special master's fund to the bar for several initiatives designed to bolster its attorney discipline unit."
Herein lies the problem -- A lack of agreed upon understanding of what "its critical public protection functions" entails.
The "About Us" page of The State Bar of California's website states the following:
The State Bar of California’s mission is to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys; theadvancement of the ethical and competent practice of law; and support of efforts for greater access to, and inclusion in, the legal system.
The State Bar:
- Licenses attorneys and regulates the profession and practice of law in California
- Enforces Rules of Professional Conduct for attorneys
- Disciplines attorneys who violate rules and laws
- Administers the California Bar Exam
- Advances access to justice
- Promotes diversity and inclusion in the legal system
Created by the Legislature in 1927, the State Bar is an arm of the California Supreme Court, protecting the public by licensing and regulating attorneys.
The State Bar licenses more than 250,000 attorneys, investigates approximately 16,000 complaints of attorney misconduct annually and distributes over $30 million in grants to legal aid organizations.
We serve the people of California through careful oversight of the legal profession."
The State Bar of California has a bizarre understanding of what "protecting the public" means, in my humble opinion.
In late 2016, I attended a program in which the presenter showed the lawyers in attendance three different laws requiring lawyers to inform their clients of non-litigation options for resolving their disputes. We were asked which one was from California.
Turns out it was a trick question. The laws were from three different states, but California has no such requirement. In other words, there is nothing illegal, unethical or otherwise inappropriate for lawyers in California not to advise their clients of non-litigation processes and approaches that might be available to them.
It takes little effort to find a great deal of information online which reflects the fact that litigation is extremely expensive because it's adversarial and all parties and their attorneys do anything and everything legally and ethically possible (theoretically) to prevail in a win/lose paradigm and that court (litigation) was always intended as a means of last resort for addressing disputes. However, that's not how law is practiced by a great many attorneys.
In his article titled Helping Families By Maintaining A Strong Well-Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective that was published in the July 2015 edition of Family Court Review, Hon. Thomas Trent Lewis, Supervising Judge Family Law Division of the Los Angeles County Superior Court, said the following:
"Our judicial officers are available to offer decisions when parties cannot or choose not to decide for themselves....
If the family court is to be a last resort for family resolution, we have an affirmative duty to work with other institutions to educate parents on resources and best practices for parenting their children....
Those two points go hand-in-hand, in that family law court is not used as the last resort, although it's supposed to be used as such. The reason it's not is because parties who cannot decide for themselves on their own don't typically involve mediators trained in facilitating such things. Furthermore, many 'choose not to decide for themselves.' This is true in every field of law and explains why people have essentially bankrupted the court systems in so many jurisdictions and the government can no longer afford to fund the courts to address such misuse....
Ultimately, whether a family litigates its disputes or resolves the dispute through mediation, parental education on the effects upon children in the midst of a family law dispute advances the goal of 'mediate when you can, and litigate only when you must.'...
When personal safety is not at issue or compromised, mediated and collaborative negotiated resolution of disputes can achieve favorable and more durable outcomes for parents and children. It is the obligation of our courts to supplement our decision-making authority with an educational role to inform parties about peacemaking options inside and outside the courthouse."
On February 28, 2018, I attended a program sponsored by coParenter titled The Future of Family Law, the Family Practice and Family Well-Being and Judge Trent Lewis was one of the panelists. During the Q&A, Judge Trent Lewis engaged in a discussion with Judge Sherrill Ellsworth (Ret.), the Chief Community Officer for coParenter. During that exchange, Trent Lewis acknowledged that the business model for some family law litigators involves exacerbating the conflict because there is a strong relationship between the level of conflict and the amount of legal fees incurred.
In his article titled, Unbundled Services to Enhance Peacemaking For Divorcing Families that was published in the July 2015 edition of Family Court Review, Forrest S. Mosten stated as follows:
“Even if a client wants to avoid court (as most do), few clients are informed by their family lawyer that there may be other lawyers in the same community who do not litigate. Further, there is rarely a lawyer-client discussion about the impact on the client of having a lawyer whose income and professional view of client care may be heavily impacted by training, participation, and confidence in the litigation process. It is not unusual for professionals to bias their advice based on the approach and services that they offer… [W]hile they endorse settlement, many litigators readily recommend and utilize the courts as a key tool in their professional approach....
Adequate informed consent should require that lawyers who litigate to discuss the possible availability of lawyers who are not also providers of litigation services. Lawyers who litigate should offer a discussion of the benefits and risks of utilizing a lawyer who litigates compared with one who does not. Most ethical opinions require written informed consent before a client chooses legal representation that limits scope (particularly, a limitation of scope that excludes litigation services such as Collaborative Law). I am proposing a heretical concept – namely informed consent be required in the reverse: Before accepting a litigation engagement., a lawyer should proactively and clearly inform a client about the benefits and risks of being represented by a lawyer who provides litigation services, acknowledge an understanding and undertaking of those benefits and risks as well as being informed of local availability of competent family lawyers who will offer unbundled legal services, and acknowledge such consent of engaging the lawyer litigator in a lawyer-client fee agreement or other written document."
Circling back around, the State Bar fulfills "its critical public protection functions" by disciplining "attorneys who violate rules and laws." Here's the rub. In the absence of rules and laws critically needed for public protection, the State Bar can't enforce them and discipline attorneys for violating them.
You may now be asking why such rules and laws don't exist. I'm afraid the answer is that the Bar and the majority of its members don't want such rules and laws. Therefore, the Bar and its members not only fail to advocate for the establishment of such rules and laws, but they oppose any such efforts by others. Unfortunately, such opposition has also involved judges and justices.
So, does the State Bar satisfy its purported mission to protect the public? Yes, but only to the degree it can. However, it can and should do so much more in that regard and can't because the public protection mission is mostly about optics in the absence of much needed rules and laws in that regard.
With all due respect Justice Lui, requiring lawyers to pay higher State Bar dues so that the State Bar can "discharge its critical public protection functions" in a manner that's mostly about optics makes no sense to me. How about the powers that be enact the types of laws and rules needed in order for the State Bar to discharge such a "critical function" in a manner that's more than just about optics before raising the State Bar fees? Otherwise, it's nothing but a more expensive joke.
Mark Baer is a mediator, conflict resolution consultant and collaborative family law attorney. He has decades of experience working with families, received his basic mediation training in 2008 and has been an ongoing student and thought leader in mediation, conflict resolution, and peacemaking ever since. He has crafted a reputation within the industry for his psychologically-minded and relationship-centered approach. Mark is also a well-known writer and columnist for a number of publications on the interplay between psychology and conflict resolution within the field of family law, as well as familial and interpersonal relationships in general. He has had a regular “Psychology and Family Law” column in the San Gabriel Valley Psychological Association’s award-winning bimonthly newsletter since 2008. A number of Mark’s articles have been referenced in books, law review articles, think tank studies, and elsewhere.
Mark has been selected as a Southern California Super Lawyer since 2012 for alternative dispute resolution (which includes mediation and collaborative law) and family law. In 2017, he was elected a Fellow of the American Bar Foundation, in recognition of exemplary dedication to highest principles of the legal profession, commitment to the welfare of society, and support for the ideals, objectives, and work of the American Bar Foundation.