If you follow news stories about the state of the bar in California, you may know that the unified bar is on a path to deunification. What you may not know are the roots of the intense drama underlying the changes.
General Structure of the Bar
The State Bar of California is an integrated or unified bar, meaning that its regulatory functions (such as admitting attorneys to practice and disciplining errant lawyers) are performed by the same entity as its trade association-type functions (such as offering educational programs). It is mandatory to be a member of the State Bar of California in order to practice law in California. Educational components of the bar are handled largely by voluntary Sections, of which there are 16. Belonging to a Section is optional and requires an extra payment with annual dues.
Sections focus on various areas of law, primarily substantive; there are also Sections focused on issues specific to small firms and solos, and to the general practice of law and technology. State Bar staff support the Sections, but the lions’ share of the work to bring educational programming to the Bar at large is performed by volunteers. The volunteers are lawyers who serve multi-year terms on the executive committees of the Sections, putting in significant unpaid time contributions for the betterment of the bar. In return for donating their time, these volunteers recoup their expenses for attending Section leadership meetings, but nothing more.
There is a dramatic shift on the horizon as the State Bar heads down a path to deunify, splitting off the Sections from the regulatory aspects of the Bar. While details remain highly in flux, the ultimate structure of having a separate regulatory agency and voluntary association which provides education is not novel. Many states, including New York, have attorney admission and discipline overseen by one entity (often the courts directly) and have a separate voluntary state bar association.
However, while the ultimate result will not be shocking, the road to it is fraught with political drama.
This is not the first time that the Sections have nearly left the Bar. In 1998, the State Bar largely shut down when the annual legislation allowing it to collect dues failed to pass. Sections considered branching off from the Bar to allow themselves to continue to function, but ultimately business as usual was restored.
In 2015, the legislature made applicable to the Bar the state’s open meeting law, called the Bagley Keene Act. Bagley Keene was first passed in the 1960s, so it is not new at all, but it had never before applied to the Bar. Its application to the Bar meant its application to Sections, with no distinction made between the regulatory functions of the Bar and the educational functions of the Sections.
Application of Bagley Keene to the Bar in general makes logical sense, as all regulatory agencies in the state are required to follow certain protocol to have meetings open to the public. Application to the Sections, however, makes no sense whatsoever. Sections perform such functions as plan CLE courses for other lawyers, publish magazines of practice-related articles, and organize networking events for lawyers; these are not the sort of functions that the general public is interested in following, nor are these tasks open to much abuse. Yet, thanks to Bagley Keene, leadership of Sections cannot meet without an agenda publicly-posted 10 days in advance, members cannot call into a meeting unless they are physically present at an ADA-compliant location which has been announced that same 10 days in advance, members of an executive committee can barely communicate outside of these publicly-noticed meetings—and more restrictions in this vein.
When Bagley Keene was first implemented as to Sections, there was talk of deunifying much like there had been discussion in 1998. Some members of Section leadership had been involved in those talks nearly 20 years ago, and the first rumbles of deunification were heard.
In addition to problems created by Bagley Keene, the State Bar has recently undergone an audit and change of leadership, both of which were intended to curb perceived past abuses and governmental wastes. Regardless of anyone’s perception on the need for such changes, they dramatically impact discussion of deunification. Along with the change in personnel at the top of the organization has come significant policy shifts, and those shifts also make it difficult for the Sections to function in the unified entity. For example, policy changes requiring Sections to hand over a larger percentage of member dues to the Bar to spend on its internal functions leave Sections with little money to operate.
The cumulative impact of changes caused by these two major events stifle Sections’ ability to effectively function.
Nothing is Simple
Separating an entity as large as the State Bar of California is no simple task, and such a major change cannot possibly come about without difficulty.
Add to that the fact that everyone involved in this discussion and process is a lawyer, and the likelihood of turmoil increases.
Since Sections are a part of the State Bar, they did not have their own voice to seek a legislative solution to the problems they face. As reported at Findlaw, Sections recently received approval from the State Bar Board of Trustees to speak on their own behalf to the legislature.
Unfortunately, the way that this vote was reported in the media made it seem that Sections have unilaterally chosen to depart the Bar and start their own entity entirely of their own accord.
The fact is that when Bagley Keene was first applied to Sections in the spring of 2016, Sections struggled but still wanted to stay with the Bar. Despite early rumblings, most Sections voted to remain unified despite the challenges brought on by the legislation. Though each Section had its own reasons for choosing at that time to remain with the Bar, one general consensus was that Sections wanted to continue functioning as they were even if it was more difficult to do so, rather than to stop their substantive work to organize a new entity and wrangle with the many logistical issues that come with setting up a new shop. Section volunteers are serious and devoted to their causes, and most simply want to keep bringing programs to other lawyers and advancing the causes of their Sections.
But, senior management of the Bar began making policy changes that tightened the rope binding the hands of Sections. With each new change, from increasing the dues being held by the Bar to canceling all future annual meetings of the Bar and finally to announcing massive workforce reductions involving staff critical to Sections’ work, Sections grew less and less able to function.
Eventually, it became clear in the last few months that the status quo of a unified bar simply cannot continue.
At this point in time, it is largely agreed among Sections and State Bar leadership that the Bar has to split into two separate entities. This is not, as has been implied by some reporting, a result of Sections simply wanting to get out from under Bar control. It has been an emotional roller coaster over the past many months, as tradition has been bucked and tempers have flared; but now, as a year has passed since Sections were first faced with the implementation of Bagley Keene, there seems to be a calmer, more focused and nuanced discussion of where Sections will land. Exactly what will transpire over the next several months is unclear, but there can be no real doubt that the Sections will continue their work, under one umbrella or another, and that the State Bar of California in 2018 is unlikely to look as it did in 2015.
* I am the current Chair of the Solo and Small Firm Section of the State Bar of California. The opinions expressed herein are exclusively my own and are not necessarily the same as those held by other members of the Solo and Small Firm Section or any other Section of the State Bar of California.