The California State Bar Had So Much Drama In 2017 That It Won An Award

It’s the start of the awards season in Tinsel Town (aka Hollywood, aka Los Angeles, aka… you get the point).  First, the Golden Globes, then a number of others, culminating in the Academy Awards in early March. It will be an “interesting” award season, for lack of a better word, given the #MeToo explosion of women and men, saying as Peter Finch did in the movie Network — which did win some Oscars back in the dark ages before streaming and even before DVDs — that they aren’t going to take it anymore. (Peter Finch’s character wasn’t talking about sexual harassment, but so what? His rant is spot on.)

One award has already been handed out.  Guess. ATL selected the State Bar of California as the winner of not just one, but two stories in ATL’s top 10 (this year the top 11) most popular posts of the year.

What has the State Bar done to deserve these “honors?” They’re funny in a train wreck sort of way, but I as a dinosaur sadly remember better and more dignified times for our formerly unified bar association.

Coming in at number 11 was the post about the depressing California bar exam passage results from the February 2017 bar, coupled with the poor showing on the July 2016 exam.

Coming in at number 4 was the post about California Bar examiners being stripped of what had been their authority to decide what the “cut score” should be for the bar exam.

After stripping the Bar of the authority to determine the cut score on its own (not a good thing), the California Supreme Court asked the Bar for input as to where that cut score should be.

Instead of making a decision in the form of a recommendation, the Trustees wimped out by punting to the Supremes, in essence saying “here, you figure it out,” giving them a number of options. (Any similarity to the Multistate?) The Supremes made the decision, leaving the cut score where it had been, much to the chagrin of law school deans, legislators, law students, and others with a vested interest in the bar passing rate, who had been pleading vociferously for a lower cut score, more in line with other states than with Delaware, which has the highest cut score in the country.

Who knows whether or not the Court would have agreed with any recommendation made. The “you decide” recommendation was really no recommendation at all. At least making a recommendation would have shown some backbone on the Trustees’ part and a willingness to take a stand on a difficult issue that needed resolution. It was really no different than a lawyer handing a client a lengthy memo without any recommendation or practical advice. The client wonders, “Where is the advice that I’m paying for or is this CYA?”

It doesn’t end there. A current dust-up involves the Committee of Bar Examiners’ reaction to how State Bar leadership is handling the review of its work and functions. By the way, the almost unanimous commendation of the Bar Examiners last fall, unheeded by the Board of Trustees, was to keep the cut score as is.

One member of the Committee has resigned, and a principal attorney for the Court has tried to mediate the dispute between volunteers and staff. However, with this resignation, it seems that the dispute goes on.

But wait, there’s more! In 1989, the Legislature required the State Bar to maintain fingerprint records of all those admitted to the bar, so that they could be compared with subsequent arrest notifications that it could receive from the Department of Justice. Now, almost 30 years later (but who’s counting?), the State Bar is about to comply with the law, but most of the members fingerprint records have not been retained by the DOJ.

On the theory of better late than never, the State Bar has circulated for public comment this question: who pays for the re-fingerprinting of approximately 190,000 active members?  Guess who the Bar wants to pay?

Comments on this proposal should be most interesting (the comment period closed December 26, 2017), especially since a California CPA sued the California Board of Accountancy on this precise issue and won, at least before an administrative law judge.

If all that isn’t enough tsuris (that’s Yiddish for grief and aggravation), the whistleblower lawsuit of a former State Bar executive assistant (to the terminated Executive Director Joe Dunn) heads to trial next month, having survived summary judgment. A defamation lawsuit by a former State Bar employee is also headed to trial next month. The law firm defending the Bar in both lawsuits is the same firm that beat back Joe Dunn’s claims in arbitration.

And just one more thing: the State Bar submitted proposed revisions to our Rules of Professional Conduct back in March 2017, this after the State Supreme Court tossed the previous set of revisions back in 2014 (those proposed rules and comments ran into thousands of pages… no joke). Now, it’s been almost a year since submission to the Court and there’s no indication as to whether the Court will accept the proposed revisions in whole or in part, reject in whole or in part, or request another “do over.”

So far, the only rule revision that the Supreme Court has approved is the one about the ethical responsibilities of a prosecutor. Right now, it’s a waiting game to see what will happen to the proposed revisions.

Just like in the olden days of “Boss Radio,” the golden age of the Top 40 (dinosaurs, remember when?), “the hits just keep on coming” for the State Bar. I have no doubt that it would be delighted to not win any ATL “most popular” posts this time next year.

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Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].