Fewer Law Degrees Grace Sacramento Walls (from Daily Journal)

The following article from the Daily Journal legal newspaper (September 19, 2011) continues a theme I started working on nearly 20 years ago - so it's not surprising that I wound up providing much of the background information.

It's interesting to see the disparate viewpoints as to whether the radical fall-off in the number of lawyer-legislators (which dropped below 20% for probably the first time in California's history last session in terms of Members actually licensed to practice law) is detrimental to the process - and particularly whether more lawyer-legislators would improve legislative sensitivity to the importance of maintaining adequate funding for the judicial branch. For my part, I know it couldn't hurt.

Fewer Law Degrees Grace Sacramento Walls

But the impact of a mostly nonlawyer Legislature is unclear.

By Emily Green

When attorney John Montevideo meets with legislators to drum up support for bills affecting the state's courts system, he sometimes packs flowcharts. The visual aids allow him to walk some of the greener lawmakers through the legal process, to explain the difference between, say, "beyond a reasonable doubt" and "clear and convincing."

Montevideo, president of Sacramento-based plaintiffs' group Consumer Attorneys of California, found himself giving those presentations a lot this year.

The reason: Far fewer state lawmakers hold a law degree now than anyone can remember, a slow but steady turn from what was once a traditional path to the Capitol.

Of the 120 legislators in Sacramento in 1971, 56 were lawyers, or nearly 47 percent.

This year, just 24 lawmakers have law degrees, or 20 percent, according to numbers compiled by Larry Doyle, the State Bar's former Chief Legislative Counsel. Of those, 21 are Democrats and three are Republicans - one of whom is currently on military duty in Afghanistan. That breakdown reflects a wider party-affiliation disparity than currently exists in either house overall.

This shrinking proportion of lawmakers with legal training undoubtedly has changed the way business is conducted in Sacramento, with legislative staff and even lobbyists filling different roles.

But observers disagree on whether the effect is worrisome or inconsequential. Some Capitol staffers and lobbyists who are lawyers said the nonlawyer majority views bills regarding the courts system as less important. They also said more lawyers can mean more money for the judiciary, which was in short supply this year as requests for courts funding fell on deaf ears.

But others, including former Assemblyman Phil Isenberg, also a lawyer, said the impact is overstated. He said "practitioners feel better" if there are other lawyers in office.

Phil Isenberg

The shift became most noticeable after the implementation of term limits in 1990, observers said. That year, 30 percent of the Senate and Assembly were lawyers, according to the data compiled by Doyle. By 2007, that had dipped to 22.5 percent.

Under the term limits, legislators can serve a maximum of six years in the Assembly and eight years in the Senate.

With legislative seats opening up on a regular basis, it was believed that practicing attorneys would run for office as a "career capper," said Drew Liebert, chief counsel to the Assembly Judiciary Committee who has worked at the Capitol since 1984.

Drew Liebert

That hasn't happened. Instead, city and county government officials have become the go-to candidates to fill legislative seats. Interest groups, who don't want to waste time forming relationships with new legislators because of the limited years they're in office, "aggressively identify" local officials they like and help them run so that the relationship is already established, said freshman Assemblyman Roger Dickinson, a lawyer and former Sacramento County supervisor.

Another reason could be pay. Legislators in nonleadership positions earn $95,291 a year, while the standard rate for new associates at major law firms is $160,000 a year, not including bonuses.

Combine those factors with polls showing widespread dissatisfaction with the Legislature and "that makes it for everyone a less attractive place to work, certainly for lawyers who are skilled," Liebert said.

As the number of attorney legislators has shrunk, so has the number of legislative aides with law degrees because lawyers want more job security than term limits allow, according to Liebert. There were "at least twice as many staff members" who were lawyers before term limits as now, he said.

Curt Child

The shift concerns Curtis Child, the judiciary's chief lobbyist, who said lawyers are crucial advocates for the courts in budget negotiations.

In 2010, former Chief Justice Ronald M. George worked closely with lawyer and Assembly Judiciary Chairman Mike Feuer, D-Los Angeles, to negotiate a deal allowing the branch to avoid extensive budget cuts. Sen. Noreen Evans, D-Santa Rosa, a lawyer who then served as chairwoman of the Assembly budget committee, also helped.

Attorneys have "naturally been the judicial system's greatest advocates and protectors," Liebert said.

Lawyer legislators "make a huge difference in being able to articulate the needs of the branch," Child said.

Not so, says Isenberg, who co-authored one of the most important pieces of recent legislation affecting the courts - the transfer of funding for trial courts from the counties to the state.

"If there were more lawyers in the legislature, would the judiciary's budget fare better? Well, I'm sorry, but that ain't true," Isenberg said. "There is not a shred of evidence for that."

Isenberg also rejected the idea that lawyers help legal process related legislation get passed - save for one type. "You might need lawyers to be interested in really boring legal stuff," he said.

But Montevideo, CAOC president, attributed the stalling of one of his organization's priority bills - legislation to lower the standard of proof in elder-abuse cases - to the lack of lawyers on legislative committees.

Nonlawyer legislators can't fully comprehend the importance of lowering the standards of proof "because they haven't practiced it, they don't understand the significance of failing to change it," he said.

Dickinson, the Sacramento assemblyman, echoed that sentiment. He said he had a particularly difficult time explaining one of his bills - also sponsored by the CAOC - to fellow lawmakers. The bill, which ultimately stalled, sought to keep motions to compel arbitration out of the appellate courts in an effort to speed up judicial review.

Mike Belote

"I worked very hard at trying to figure out ways to explain it to nonlawyers in a way that would make sense to them," he said. "It's not because they're dumb or anything. It's because it's not part of their world. It's not part of their jargon."

Mike Belote, lobbyist for the California Defense Counsel and California Judges Association, doesn't buy that nonlawyers are harder to educate about bills.

"Being a lawyer doesn't always mean they would understand the bills any better, to be honest," Belote said. "I'm a lawyer, and I have a heck of a time reading some of these bills."

State Bar Board Begins Transition Process in Earnest

The State Bar of California has begun the work of transitioning the Board-of-Trustees-to-be (né Board of Governors) from the current 23-member, mostly-elected configuration to the new, 19-member, mostly-appointed configuration that will take effect under the recently-enacted SB 163 (see earlier post).

A special Governance Transition Plan Subcommittee of the Board's Planning, Program Development and Budget Committee, chaired by third-year governor Patrick Kelly of Los Angeles, has posted a memo on the Bar's web site, outlining initial options for transitioning from the old board to the new model. The key issue to be decided will be how to handle the issue of elected lawyer representatives on the board, who make up 15 members of the current board (elected from seven districts established by the Bar), but only six members on the board-to-be (elected from districts coinciding with the six districts of the California Courts of Appeal).

The subcommittee, which, in addition to Kelly, includes attorney members Alec Chang, Craig Holden, and Loren Kieve, and public members Dennis Mangers and Gwen Moore, will hold its initial meeting on Monday, October 10, from 11 a.m. to 2 p.m. at the Bar's San Francisco office. 

The final plan has to be submitted to the Legislature by January 12, 2012.  The transition must be accomplished by October 14, 2014, following the expiration of the term of office of all current elected attorney members of the Board. 

Governor Signs Bill Re-configuring State Bar Governance

 Governor Edmund G. Brown, Jr., has signed into law SB 163 by Senator Noreen Evans (D-Santa Rosa), which makes the most profound changes in the State Bar of California since the professional disciplinary system was instituted over 20 years ago.

Senator Noreen Evans

The changes made by the bill range from the mostly symbolic (changing the name of the Bar's governing body from the "Board of Governors" to the "Board of Trustees"), to the mostly obvious (establishing in statute that the primary purpose of the State Bar is the protection of the public), to the substantive (changing the composition of the governing board from one dominated (15 of 23) by attorneys elected by their fellow attorneys to one comprised primarily of political appointees.  Once a "grandfathering" process has been completed to permit the current contingent of elected governors to serve out their terms, the resulting board will consist of 19 members, including six attorney members elected from new districts coinciding those of the courts of appeal; five attorney members appointed by the Supreme Court, which is encouraged to appoint the members from specified demographies; non-attorney public members appointed by the Governor, Senate Rules Committee, and Speaker of the Assembly (the same as current law); and two new attorney members appointed by the Senate Rules Committee and Speaker of the Assembly.

The Board of Governors has appointed a "Transition Plan Subcommittee" of its Planning, Program Development and Budget Committee, which will develop a "Proposed Plan to Transition the Bar to a Smaller Board."  The committee is chaired by third year governor Patrick Kelly of Los Angeles, and includes attorney members Alec Chang, Craig Holden, and Loren Kieve, and public members Dennis Mangers and Gwen Moore.  It will hold its initial meeting on Monday, October 10, from 11 a.m. to 2 p.m. at the Bar's San Francisco office.

The undisputed good news about the signing of SB 163 is that the bill extends for another year the Bar's authority to collect fees from the state's lawyers, thereby ensuring the continuation of the Bar's activities - and primarily its attorney discipline system - for the coming year.  The fees authorized under the bill are reduced by a $10 rebate, and all members will also be given the option of designating that $20 of their fees (as opposed to the current $10) go to support legal services programs.  In addition, the bill memorializes the Bar's agreement to transfer $2 million in each of the next two fiscal years from funds received from non-mandatory sources to the IOLTA program, again for the support of legal services.

For a detailed description of these and other provisions of SB 163, see the final Assembly Judiciary Committee analysis of the bill prepared for its September 2, 2011, hearing.

New State Bar Governance Model Appears in SB 163

Just over a week after the State Bar's "Governance in the Public Interest Task Force" issued its legislatively mandated report (including both majority and minority reports; see earlier post), Senate Judiciary Committee Chair Noreen Evans has amended her SB 163, this year's State Bar Fee Bill, to include a hybrid version of the two - with an added legislative twist.

In some respects, SB 163 now represents a clear Solomonic "splitting of the baby" between the majority and minority reports. Where the majority report sought to maintain the current 23-member board, with 12 of the 17 attorney members elected and a 17/6 ratio of attorneys to public members, and the minority report called for an all-appointed 15-member board with a 9/6 attorney/public member ratio, the SB 163 model calls for the board to be comprised of (after the terms of existing members expire, no later than 2014) 19 members (exactly midway between the two models), of which 13 will be attorneys and 6 non-attorney public members.
The 13 attorneys, in turn, will be comprised of six elected from new districts paralleling the existing Court of Appeal districts (a feature of the Majority Report); five appointed by the Supreme Court (a feature of both reports) and - the only completely new feature of the bill - two appointed by the Legislature, one each by the Speaker of the Assembly and the Senate Rules Committee. This addresses a point of legislative concern that appears to have been hanging around since the last time Jerry Brown was governor - the disparate appointing authority between the Governor (who has four public member appointments to the Board) and Legislature (which has two). Under SB 163, both the Governor and the Legislature would have the authority to appoint four board members - although the Governor's would all be non-attorney public members and the Legislature's would be split between non-attorney public members and attorneys. Presumably the Governor has been consulted with and signed off on this matter, since it was an argument over relative appointing authority long ago (back in 1976) that led then-Governor Brown to veto one of the original State Bar Fee Bills.

One thing both the majority and minority reports and SB 163 all agree on: The name of the Bar's governing body will be changed from "Board of Governors" to "Board of Trustees."

Other provisions of SB 163 would require the board to complete and implement a 5-year strategic plan, with attendant reporting requirement, and would reconstitute the Governance in the Public Interest Task Force in a way more consistent with the new composition of the board.

SB 163 is currently on the Senate Floor, awaiting the vote to send it to the Assembly for further deliberation. That vote will occur this week.