topic of Sunset Review of the State Bar will come up in the next
legislative session beginning in January. There are a number of
proposed changes which will affect you if implemented. Here is an
examination of just one and it is substantial and it involves your
On October 27, 2016 Frank Stevenson, president of SBOT, sent you an email on sunset. He told you about the recommendations of he "Sunset Advisory Commission," particularly as it relates our right to vote by referendum on rules. Stevenson's letter leaves out an important change. First a little background.
As you know, the issue of the sunsetting of the State Bar comes up every 12 years. There is usually some melodrama attached to it. For example in 2005 there was a substantive revision of the disciplinary procedure which ultimately did away with the long-standing local committee-level hearing on grievances.
This year the melodrama included an initial proposal to do away completely with the right of lawyers to vote by referendum on rule making and dues. The initial recommendation was:
"The State Bar’s archaic rulemaking process requiring individual attorneys to vote whether to approve any changes to the rules governing their own conduct and discipline has obstructed the Supreme Court’s ability to make timely rule adjustments. The referendum requirement, out of step with all state and national best practices, has tended to encourage politicization of issues and lengthen the time and cost of updating rules, and has blocked any significant improvements to attorney oversight for more than two decades. This report recommends removing the referendum requirement and replacing it with a more standard rulemaking process with ample opportunity for stakeholder input under the existing authority of the Supreme Court. This change is critical to ensure the public interest is put above the profession’s interest." The report is here.
This initial recommendation projects its original bias with the loaded expression "archaic rulemaking process" and liberally uses jargon like “best practices” and "out of step" without defining or otherwise providing context or data or other authority or justification for such expressions. As a lawyer you may have some evaluative reaction to vague expressions that use the "argument from authority" (argumentum ad verecundiam). However, it is well-known and openly stated in the report that the primary complaint for years has been that referenda have failed to pass (including sometimes for lack of a quorum vote). The last proposed rule change of 2011 was voted down and that raised the ire of those who wanted those rule changes, including members of the Supreme Court. The language complaining about the result of 2011 was this: "By allowing attorneys to vote on their own disciplinary rules, the state risks putting the profession’s interest above the public interest. The significant time and resources needed to hold referenda combined with the low success rate contribute to a general sense of burnout among key stakeholders and create a reluctance to pursue needed rule changes."
Ultimately the Sunset Advisory Commission modified the recommendation to retain the referendum requirement but there is a catch. The catch is that you will have no say in what you are to be taxed as dues for your mandatory membership in the State Bar. Stevenson's "Message" of October 27, 2016, omits reference to this important change while cheering the (partial) retention of referenda. In thinking about whether the Sunset Advisory Commission's recommendation is reasonable, consider the following:
It's an issue and if it is important to you, make your voice known. Here are alternative sources of information:
The Original Staff Report of April 2016
The State Bar's Self Studyof September 2015
The Final Recommendation of August 2016