Ed's wife reminds him that there's no such thing as a free lunch, but today Ed shares tips that will promote your firm and services at little expense.
William Hebert, President of the State Bar of California, is leading the charge to dismember the State Bar. Hebert's plan would eliminate six lawyers' seats on the Board of Governors, shrinking the current 23-member body to 17. The Governor and Legislature would still name six non-lawyers to the Board, but the state Supreme Court would choose the remaining 11 lawyer-members, stripping Bar members' current power to elect them.
In other words, despite paying dues, practicing lawyers would no longer have any say in the election of the people who govern their every action, their every responsibility to the public and their very right to earn a living. Does this sound a little like “taxation without representation?”
Yes, the state Legislature’s edict was to study the issue of governance and respond to Legislature. But, there is an option not being pursued by the Bar: Responding that the status quo works just fine, and “if it ain’t broke, don’t fix it.” Or, let’s identify exactly how the Bar is being unresponsive to the public and address those issues. A wholesale change being contemplated will not change the public’s perception nor will it protect the public any more so than the current body does. This reminds me of the recent insurance discussion. The public would have been protected only be demanding that lawyers have malpractice insurance. But, the Bar didn’t go that far. Instead, they merely made it a requirement to notify clients if they didn’t have such insurance. In other words, we’re looking for band-aids; we’re not looking at the real issues. The Legislature didn’t help by connecting this report to the dues bill. And eliminating the voice of lawyers in the election of its governing body likewise will not address the Legislature’s core concerns.
The issue, raised by a body whose members no longer contain a meaningful number of lawyers, is about public protection ... and the perception by some that the State Bar’s sole mission should be to protect the public. I don’t know where these folks have been hiding, but that is the mission of the current Bar. All one has to do is read the Rules of Professional Conduct. All one has to do is speak to the hundreds, if not thousands, of lawyers who feel the wrath of the Bar by its actions and in-actions (and I’m not referring to the disciplinary system that appropriately charges a small percentage of lawyers with misdeeds).
In fact, only one State Bar President in recent memory was so bold as to suggest that the State Bar has two goals: One is to protect the public; and two is to help lawyers be more effective for their clients and more efficient in the delivery of their legal services, again for the benefit of the public. Neither the staff nor any other president in recent memory has publicly uttered anything but the first goal.
And if it’s a question of being “more responsive to the general public,” there are other approaches that can be suggested. But Mr. Hebert doesn’t even look in that direction. Merely cave into the Legislature out of fear that a dues bill might be held hostage. Does this sound like a British leader we remember in dealing with a certain tyrant? Appeasement won’t work in this circumstance either.
I have been a very strong supporter of the integrated bar all these many years since law school. However, Mr. Hebert has finally caused me to flip the switch. I am now in favor of converting the State Bar to a licensing and disciplinary agency only. The result will be a savings to lawyers of at least 20% of their current dues. It takes 80% of the dues to run the disciplinary system. That’s close to$32 million. Lawyers can then join voluntary bar associations, either local or state-wide, create the education programs they need for their betterment, lobby for laws that will benefit the public without impediment, and otherwise create activities that improve their professional conditions.
<auer Brown writes about a new California Bar opinion that addresses wireless network use.
Quoting from their note, they say:
"Attorneys owe their clients a duty of confidentiality and competence. But when an attorney uses wireless Internet to communicate or access files, such as in an airport or other public location, is that communication over an unencrypted wireless network confidential? And is an attorney competent if he or she broadcasts client confidences, including employer confidences for in-house counsel, over an unencrypted network?
On January 20, 2011, the State Bar of California issued formal opinion no. 2010-179, addressing these questions. The opinion provides six factors that attorneys should consider when determining whether a particular technology is appropriate for their communication.
- The level of security afforded by that technology, including whether reasonable precautions may be taken to increase that level of security by, for example, encrypting email.
- The legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information—that is, whether the form of communication is protected by law, like telephones and information stored on computers.
- The degree of sensitivity of the information—the more sensitive the information, the more security is appropriate.
- The possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product—again, the more severe the consequences, the more security is appropriate.
- The urgency of the situation—if a message absolutely must be delivered immediately, security is a secondary consideration.
- The client’s instructions and circumstances, such as access by others to the client’s devices and communications—if, for example, a client has specified that email is not confidential enough, or that a particular kind of communication must be encrypted, the attorney must comply with those instructions." See their note for more.