Attorney Discipline System, In re

• Decision Date: 03 December 1998
• Docket Number: No. S073756,S073756
• Citation: 79 Cal.Rptr.2d 836,19 Cal.4th 582,967 P.2d 49
• Court: California Supreme Court
• Parties: , 967 P.2d 49, 98 Cal. Daily Op. Serv. 8815, 98 Daily Journal D.A.R. 12,247 In re ATTORNEY DISCIPLINE SYSTEM; Requests of the Governor and the State Bar of California

Page 836

79 Cal.Rptr.2d 836

19 Cal.4th 582, 967 P.2d 49, 98 Cal. Daily Op. Serv. 8815,

98 Daily Journal D.A.R. 12,247

In re ATTORNEY DISCIPLINE SYSTEM; Requests of the Governor and the State Bar of California.

No. S073756.

Supreme Court of California

Dec. 3, 1998.

Page 837

[19 Cal.4th 587] [967 P.2d 50] Marie M. Moffat, Lawrence C. Yee, McCutchen, Doyle, Brown & Enersen and Raymond C. Marshall, San Francisco, for The State Bar of California.

Daniel M. Kolkey, L. Michael Bogert and Brian W. Jones, Sacramento, for Governor Pete Wilson.

Daniel E. Lungren, Attorney General, Anthony S. Da Vigo, Deputy Attorney General, Philip S. Anderson, Diane L. Karpman, Los Angeles, Stephen R. Barnett, Berkeley, Anthony J. Bradisse, J. Anthony Vittal, Los Angeles, John T. Philipsborn, San Francisco, William M. Wunderlich, San Jose, David Cameron Carr, Marina Del Rey, Anthony T.

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[967 P.2d 51] Caso, Sharon L. Browne, Sacramento, R.S. Radford, James R. Christiansen, Santa Barbara, Colin J. Devellerez, Jerome M. Garchik, San Francisco, Michele Louise Giguiere, Sacramento, David J. Halperin, San Francisco, Bradford E. Henschel, Fred J. Hiestand, Sacramento, Ross Johnson, Betsey Warren Lebbos, San Jose, Levin, Ephraim Margolin, San Francisco, Patrick J. McDonough, Melanie L. Morgan, Sacramento, James W. O'Brien, Los Angeles, Michael J. Oths, Boise, ID, William Nesh, Woodland Hills, Sharon L. Browne, Sacramento, Deborah J. La Fetra, Lise A. Pearlman, Ellen R. Peck, Murray B. Petersen, Oakland, Nancy G. Priddis, Berkeley, Emory L. King, Jr., James V. de la Vergne, Sacramento, Adam B. Schiff, Ronald R. Silverton, Los Angeles, John Cary Sims, Sacramento, Jimmy Starr, Crested Butte, James N. Waldorf, Larry Gassner, Ontario, Anderlini, Finkelstein & Emerick, P. Terry Anderlini, San Mateo, Kopp and Di Franco, Quentin L. Kopp, Cotter & Del Carlo, Richard A. Canatella, Ronald M. Toran, San Francisco, Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter, Ukiah, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Jerome B. Falk, Jr., Therese M. Stewart, San Francisco, Horvitz & Levy, Ellis J. Horvitz, Calabasas, Jon B. Eisenberg, Oakland, Kehr, Crook & Fox, Robert L. Kehr, Los Angeles, Cooper, White & Cooper, Mark L. Tuft, Townsend and Townsend and Crew, Paul W. Vapnek, San Francisco, Hardy, Erich, Brown & Wilson and David S. Worthington, Sacramento, as Amici Curiae

GEORGE, Chief Justice.

On October 14, 1998, this court issued an order soliciting public comment in response to a letter submitted to the court by Governor Pete Wilson and a "Request for a Special Regulatory Assessment" submitted by the State Bar of California.

[19 Cal.4th 588] In his letter, the Governor acknowledged that a problem with public protection had arisen because the State Bar's disciplinary system no longer was operating effectively, observed that "[c]learly, the Court has inherent power over the discipline of attorneys," and requested that this court assume responsibility over the attorney discipline system pending a legislative solution. At the same time, however, the Governor asserted that this court's imposition of additional fees on members of the State Bar would invade the legislative prerogative, and argued that "[t]he Court could direct that at least a portion of the existing Bar membership fees be used to fund a discipline system that ferrets out the most egregious offenders."

In its request, the State Bar asked that the court issue an order requiring active members of the State Bar to pay a fee of $171.44 in addition to $77 already authorized by existing statutes, for the purpose of funding the bar's disciplinary activities. The State Bar asserted that the court had the power to assess this fee under its inherent authority to regulate the admission and discipline of attorneys practicing in the state.

Citing the circumstance that "the legislative session has adjourned without the enactment of a measure to provide for the usual funding of the attorney disciplinary process in California and that there may be a substantial risk to the public resulting from the absence of an adequately functioning attorney disciplinary system," the court set a hearing on the requests submitted by the Governor and the State Bar for November 9, 1998, at its courtroom in Sacramento. In addition, the court solicited comments and briefs presenting legal analysis and supporting points and authorities on three specific questions, ¹ and invited interested individuals

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and organizations to submit requests to address the court. More than 50 written submissions[967 P.2d 52] were filed [19 Cal.4th 589] with the court, which granted the requests of 15 individuals to make an oral presentation at the hearing. ²

For the reasons explained below, we conclude that this court has authority to impose a regulatory fee upon attorneys for the purpose of supporting an attorney discipline system, and that it is incumbent upon this court to do so at this time, because the lack of a functioning attorney disciplinary system places at grave risk the public, the integrity of the legal profession, and the interests of the courts. The Legislature adjourned in September 1998 without authorizing an annual State Bar membership fee for either 1998 or 1999, leaving the State Bar with only a skeletal discipline system incapable of providing adequate public protection. The backlog of complaints is mounting, and the adverse effects of a nonfunctioning attorney disciplinary system are becoming more and more evident. Although the newly elected Legislature will be convening in December 1998 for organizational purposes, and Governor-elect Gray Davis will assume office early in January 1999, there are no assurances that a legislative solution to the impasse in Sacramento will be found in the near future, or, even if found, will become effective before January 1, 2000.

Furthermore, we conclude that this court has the authority to provide that the funds generated by its imposition of a regulatory fee on attorneys be used, under the supervision of a special master appointed by this court, to support the existing State Bar attorney discipline system. Such an approach represents the least intrusive means of providing protection for the public pending a legislative resolution of the outstanding issues regarding the bar's functions, and best preserves the status quo until agreement can be reached. As we shall explain, this court's actions in this regard do not violate the separation of powers doctrine, but rather reflect our inherent and primary constitutional authority in the area of attorney discipline, and the well-established role of the State Bar as an administrative arm of this court with regard to attorney discipline.

[19 Cal.4th 590] Accordingly, upon the filing of this opinion, we adopt a rule imposing a special regulatory assessment on attorneys actively engaged in the practice of law, to be used exclusively for attorney disciplinary purposes. Concurrently, we shall appoint a special master charged with oversight of the funds collected pursuant to the rule, in order to ensure that they are utilized by the State Bar solely to fund disciplinary functions.

In taking this action, we are mindful of the Legislature's traditional role in setting dues for members of the State Bar, as well as this court's ultimate and inherent authority over and responsibility for the discipline of attorneys licensed to practice before the courts of California. We emphasize that the rule we adopt is interim in nature, narrow in scope, and directed solely at providing necessary disciplinary functions. Our intention is to provide protection to the public, the courts, and the legal profession pending further action by our sister branches. At such time as the legislative and executive branches authorize funding for an adequately functioning attorney discipline system, we shall resume this court's traditional role in this area.

I

The State Bar of California was created by the State Bar Act of 1927. (§ 6000 et seq.) In 1966, the electorate adopted a provision

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[967 P.2d 53] placing the State Bar in the judicial article of the state Constitution. Article VI, section 9 of the California Constitution states: "The State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record." ³ Traditionally, the functions of the bar have been funded through fee assessments imposed by the Legislature

On October 11, 1997, Governor Wilson vetoed Senate Bill No. 1145 (1997-1998 Reg. Sess.), which would have authorized the State Bar to collect a total of $458 per year from each attorney in 1998 and 1999. ⁴ After the Governor's veto, the bar remained authorized by statute to collect $77 in annual bar dues in 1998, of which $40 expressly is reserved for the Client Security Fund and the costs of its administration (§ 6140.55), and $10 [19 Cal.4th 591] expressly is reserved for costs relating to providing facilities for staff or major capital improvement projects (§ 6140.3). The remaining $27 may be used for the costs of the disciplinary system. (§§ 6140.6, 6140.9.)

Negotiations among the bar, the Governor, legislators, and other interested individuals and entities ensued over the next several months. On June 22, 1998, the State Bar filed with this court a "Letter Requesting Rule Of Court Or Order Setting Annual State Bar Membership Fee To Provide Emergency Interim Funding." The letter stated that lack of available funding due to the absence of a dues bill would result in the layoff of approximately 500 State Bar employees on June 26, 1998. The letter requested that the court issue a rule or order setting the active membership fee at $287, to be paid by all active members of the State Bar, in order to permit the State Bar to perform its mandated disciplinary and regulatory functions...