State Bar of California

State Bar of California

Type	Bar association
Headquarters	San Francisco, CA
Location	United States
Membership	248,000+
Website	http://www.calbar.ca.gov/

The State Bar of California is California's official bar association. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, and prescribing appropriate discipline. It is directly responsible to the Supreme Court of California. All attorney admissions and disbarments are issued as recommendations of the State Bar, which are then routinely ratified by the Supreme Court.

The State Bar was legally established on July 29, 1927, when the State Bar Act went into effect. Today, the State Bar of California is the largest state bar association in the United States, with 248,000-plus members as of May 2014, of whom over 181,000 are on active status. It is headquartered in San Francisco, with branch offices in Los Angeles and Sacramento.

The State Bar's main office in San Francisco is housed on several floors of this office building.

Criticisms of California Bar

The California Bar has been the subject of criticism regarding its power, membership, enforcement procedures, and neutrality:

The State of California by law, requires all attorneys practicing law in the state to be members of the California State Bar. The State Bar of California, then in return for the favor of forced membership and dues, is required to act as the "administrative arm" of the California Supreme Court. And what is supposed to be the chief purpose of administration? To administrate a Self Disciplinary program of its member attorneys. Better defined as, "Foxes Guarding the Chicken Coop". What this has led to in its "Model" form is a smoke screen to frustrate individuals that have a problem with an attorney, and to keep attorneys out of harm's way from the general public; A general public that has many valid reasons to be ticked off at them. The State Bar of California has important sounding titles for their fellow attorney members that discipline each other. They call themselves judges (not judges elected by the public), and governors (not elected by the public), and court committees (not the public court), and appointees to the court (not the public court, but their own internal court). For the purpose of discussion, lets call the State Bar of California, "The Club".

— AttorneyBusters.com

In a petition for appeal filed with the California Supreme Court, the California State Bar states, "...in the last six years alone the State Bar has been sued more than 20 times in superior court ...." In its court filings, the California State Bar seeks to extend the protections of the speech clause of the First Amendment -- which was enacted to protect private citizens from government abuses of power -- to punish lawsuits brought against the State Bar by private individuals alleging the State Bar abused its power. In seeking relief from the California Supreme Court, the California State Bar states it seeks to, "demonstrate the regularity with which the State Bar is sued over its actions in attorney admissions and discipline ...."

In 2006, a California court of appeal admonished the California State Bar for commandeering the right of federal courts to enforce their own admissions processes, and in ruling against the California State Bar the court of appeal specifically stated:

In his motion for a partial stay, Benninghoff contends that state law cannot interfere with his representation of federal prisoners seeking prison transfers from the U.S. Department of Justice. We must agree. "The [State Bar] Act does not regulate practice before United States courts." (Birbrower, supra, 17 Cal.4th at p. 130.) Rather, "[t]he State Bar Act and other statutes enacted for the purpose of regulating the practice of law in this state are applicable to our state courts only." (In re McCue (1930) 211 Cal. 57, 66.).

— Benninghoff v. Superior Court (State Bar of California) (2006) 136 CA4th 61

In 2014, Jon B. Streeter, the President, State Bar of California states: "Our role is roughly analogous to that of a criminal prosecutor.... " Yet he further states, "The professional discipline of attorneys is not about punishment." In regards to the Bar's efficiency of disciplining attorneys, the President of the State Bar states, "For years, [the California State Bar] has carried an enormous backlog ...averaging some 1,600–1,900 uncompleted investigations .... Any backlog -- much less one of this magnitude -- undermines our credibility with the public .... Only offending lawyers deserving of discipline benefit from delay."

A 2014 Slate Magazine article criticizes the California State Bar for disproportionately punishing first-time applicants to the Bar who have never been lawyers before, while ignoring a pattern of misbehavior by lawyers that have been long-time members of the California Bar and officers of the court in an official capacity. In so doing, Slate Magazine specifically criticizes the California Bar and California Supreme Court for denying Stephen Glass, a writer who admitted to prior journalistic forgeries, membership to the California Bar after an extended period of rehabilitation:

They gravely insist Glass is not sufficiently rehabilitated. Really? Glass committed his journalistic fraud in the mid-1990s—nearly 20 years ago. For the past 10 years—10 years!—Glass has worked as a law clerk for a California firm, in exemplary fashion. As the judgment itself admits, Glass’s boss Paul Zuckerman “became convinced that Glass was one of the best employees in the firm, with a fine intellect, a good work ethic, and reliable commitment to honesty. Glass exhibited great compassion, assisting at a personal level with difficult clients and helping to find resources and social services for some of the firm’s many homeless clients. Other lawyers who had worked for or with the firm confirmed Zuckerman’s view of Glass as an employee who conducted excellent legal research, was assiduous and hyper-scrupulous about honesty, and stopped to think about ethical issues.” For 10 years, Stephen Glass has been performing virtually all the work of a lawyer for a law firm in California. He is noted for his attention to detail, his care for clients, and his honesty. Exactly how much longer would he need to work in this dedicated way for the justices to forgive? One more year? Five? Ten? How’s never? In the Bible, Jacob served 14 years: Would that be enough?

— Slate Magazine, Jan. 27, 2014: "The California Supreme Court’s Cruel, Self-Righteous Decision to Reject Disgraced Journalist Stephen Glass’ Bar Application"

Legal status

California is among the majority of American states that operate an integrated (mandatory) bar, in which the statewide bar association is integrated with the judiciary and active membership therein is required in order to practice law. Article 6, 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.

The State Bar acts as the administrative arm of the California Supreme Court in matters involving the admission, regulation, and discipline of attorneys. Its structure, responsibilities and powers are elaborated in the State Bar Act, Sections 6000–6238 of the Business and Professions Code, as well as its own Rules of the State Bar of California and certain portions of the California Rules of Court. Generally, practicing law in the state of California without being a member of the State Bar is the crime of unauthorized practice of law. The only exceptions are for patent attorneys who restrict their practice to the prosecution of patent applications (i.e., the process of obtaining a patent before the United States Patent and Trademark Office); attorneys who practice areas of law exclusively regulated by the federal government (such as immigration) under a U.S. Supreme Court decision in 1963 that prohibited states from restricting the practice of exclusively federal areas of law; and attorneys from other states who have applied to the California courts for temporary admission pro hac vice to work on a single California case in collaboration with a member of the State Bar.

Formation of the State Bar

The State Bar's predecessor was a voluntary state bar association known as the California Bar Association. The leader of the effort to establish an integrated bar was Judge Jeremiah F. Sullivan, who first proposed the concept at the CBA's Santa Barbara convention in September 1917, and provided the CBA with a copy of a Quebec statute as a model.

It took almost ten years to establish an integrated bar in California. Sullivan, who was also the President of the Bar Association of San Francisco, organized BASF committees to draft and propose appropriate legislation. Both BASF-drafted bills died in the California Legislature, in 1919 and 1921. In 1922, Sullivan finally persuaded the CBA to take action on his proposal; the CBA drafted a new bill, lobbied lawyers and legislators around the state for their support, and persuaded the Legislature to pass the bill in 1925. That bill died by Governor Friend Richardson's pocket veto.

After two more years of lobbying, the CBA tried again. Governor C. C. Young signed the State Bar Act into law on March 16, 1927. On May 12, 1927, the Supreme Court of California appointed the State Bar Commission, which in turn established the State Bar of California as an operating entity with offices at 519 California Street in San Francisco on July 30, 1927. The State Bar immediately mailed out registration forms (demanding a $3 preorganization fee as authorized by the Act) to all California attorneys. Identification numbers were assigned to each attorney as they registered; notably, State Bar Number 1 went to Chief Justice William H. Waste.

By October 1, 1927, 7,872 lawyers had registered. These lawyers then voted by mail for the State Bar's first Board of Governors. On November 17, the State Bar held a preorganization dinner at the Palace Hotel in San Francisco, followed by the formal organization meeting the next day. By the time the dinner started, 9,602 lawyers had registered. The next morning, during the State Bar's organization meeting, the CBA yielded to its successor by winding up its affairs and ending its corporate existence.

Member fee authorization process

The State Bar of California is one of a small number of integrated bar associations where much of its member fee structure must be ratified annually by both the legislature and the governor. Without such annual reauthorization, it can charge California lawyers only $77 per year.

In October 1997, Governor Pete Wilson vetoed the fee authorization bill for that year. He pointed out that California's bar had the highest annual fee in the country at $478. He also stated that the State Bar had become bloated and inefficient and criticized its Conference of Delegates for taking positions on divisive political issues like abortion. The State Bar's political and lobbying activities, combined with the compulsory nature of its dues, had already resulted in a U.S. Supreme Court case in which the State Bar was forced to allow attorneys to opt out of paying dues to support positions that they found abhorrent, Keller v. State Bar of California, 496 U.S. 1 (1990).

As a result, the State Bar was forced to lay off 500 of its 700 personnel on June 26, 1998. For six months, the State Bar's attorney disciplinary system was nonfunctional. On December 3, 1998, the Supreme Court of California unanimously held that it had the power to impose an emergency annual fee of $171.44 on all California lawyers to fund the attorney disciplinary system. See In re Attorney Disciplinary System, 19 Cal. 4th 582 (1998). By then, the backlog of unprocessed complaints had soared to 6,000.

On September 7, 1999, Governor Gray Davis signed a bill that set the annual fee for the State Bar at $395, thus ending the funding crisis. Since then, the State Bar has undertaken several reforms to improve the efficiency of its operations. It also split off the controversial Conference of Delegates into a separate volunteer organization.

On October 11, 2009, Governor Arnold Schwarzenegger vetoed the fee authorization bill for 2010. In his veto message accompanying the return of the unsigned bill to the Legislature, he stated that just as in 1997, the State Bar had again become inefficient, scandal-ridden, and excessively politicized.

Lawyer admissions

The task of deciding whom to admit to the bar is performed by the Committee of Bar Examiners and the Office of Admissions under procedures set out in the State Bar Act.

Prior to law schools in the U.S., the only way to become an attorney was to "read" for the law. Usually this was done by reading Blackstone's Commentaries on the Laws of England as a textbook, and by interning for a judge or a lawyer for a prescribed period. The Bar candidate would then be questioned by a panel of court justices and accepted or rejected as an officer of the court. If accepted, the candidate was sworn into the Bar.

Becoming an attorney in California

California requires two years of pre-legal education before beginning the study of law. Once the pre-legal education is met, California has different paths to become a licensed attorney:

1. Attending a law school accredited by the American Bar Association or approved by the Committee of Bar Examiners and passing the California Bar Examination (bar exam).
2. Study law for at least four years by:

   * Attending a law school authorized by the State of California to award professional degrees that is not accredited by the ABA or approved by the State Bar of California. (including online law schools) and pass the bar exam, or

   * Participating in an approved course of study in a law office or the chambers of a judge and pass the bar exam. ("Law Office Study Program"; see below.)

3. Already being licensed in another state in the United States and taking the California bar exam. Lawyers who are already licensed (and have been active for four or more years) in another jurisdiction may be able to waive out of taking the Multistate Bar Examination portion of the bar exam.

Regardless of the path one takes to becoming a licensed attorney, most bar applicants take a special preparation course for the bar exam immediately following their graduation from law school.

There is no citizenship requirement for admission to the California bar exam; a person can be a citizen of any country and be admitted to practice in California. No particular type of visa, including a green card, is required for admission to the bar. However, applicants must have a Social Security Number to apply. Applicants are able to petition for an exception to the latter rule.

Prospective applicants must also pass the Multistate Professional Responsibility Examination and undergo a background check to determine if the applicant has the "good moral character" necessary to practice law in California. A prospective applicant must receive a "positive determination" as to the inquiry on their "moral character" in addition to satisfying all other educational requirements and exam passages to be granted a license to practice law in California.

Accredited law school study

The majority of prospective lawyers studying for the California Bar attend law schools accredited by the ABA or approved by the CBE. Once they receive their J.D. degree from these schools, they are eligible to take the bar exam.

Unaccredited law school study

Students may choose to become a licensed attorney through law schools that are not accredited by the ABA or approved by the State Bar of California Committee of Bar Examiners. Students attending these schools must also complete the First-Year Law Students' Examination (FYLSE, popularly known as the "Baby Bar Examination") before receiving credit for their law study.

Students should pass the FYLSE within three administrations after first becoming eligible to take the examination (which usually occurs upon completion of the first year of law study) in order to receive credit for law study undertaken up to the point of passage. It is possible for a student to pass the test after the first three administrations, but such a student will receive credit only for their first year of law study; no courses beyond the first year will be credited if a student takes more law school classes and passes the Baby Bar thereafter.

California State Bar Law Office Study Program

The California State Bar Law Office Study Program allows California residents to become California attorneys without graduating from college or law school, assuming they meet basic pre-legal educational requirements. (If the candidate has no college degree, he or she may take and pass the College Level Examination Program (CLEP).) The Bar candidate must study under a judge or lawyer for four years and must also pass the Baby Bar within three administrations after first becoming eligible to take the examination. They are then eligible to take the California Bar Examination.

Out-of-state attorney examination

Persons already licensed as attorneys in other states may take the California Bar. Provided they have already taken the Multistate Bar Examination (MBE), they may omit that portion of the California Bar Examination. The attorneys opting to omit the MBE must have four years of practice in their local jurisdictions. Attorneys without the required years in practice take the General Examination, like most other applicants.

The California Bar Examination

California administers what is widely considered the nation's most difficult bar examination twice each year, in February and July. Several prominent attorneys and politicians have either never passed, or had difficulty passing, the California Bar Exam. Significant among these are former Los Angeles Mayor Antonio Villaraigosa (a graduate of Peoples College of Law who never passed the bar exam after failing four times), Stanford law professor Kathleen Sullivan (Harvard Law School) (who failed the bar in July 2005 but passed on her second attempt in February 2006), California Governor and former Attorney General Jerry Brown (Yale Law School, '64) (who took it twice before passing) and former California Governor Pete Wilson (UC Berkeley School of Law) (who passed on his fourth attempt). Unsuccessful applicants have even sued the State Bar—unsuccessfully—on the grounds that the exam is unnecessarily difficult.

The Committee of Bar Examiners does not release information on bar exam failures, so it is impossible to know who has taken and failed the exam the most times.

The California Bar Examination consists of 18 hours of examination time spread out over three days; the only U.S. state with a longer bar exam is Louisiana, at 21.5 hours of testing (Louisiana law, in contrast to the common law system of the other 49 states, is based partially on civil law and is one of the few exams without a multiple choice component). California's exam is administered in the following manner:

• 1st day (Tuesday): 3 essay questions (9 am – 12 pm); 1 performance test (2 pm – 5 pm)
• 2nd day (Wednesday): 100 Multistate Bar Examination (MBE) questions (9 am – 12 pm); 100 MBE questions (2 pm – 5 pm)
• 3rd day (Thursday): 3 essay questions (9 am – 12 pm); 1 performance test (2 pm – 5 pm)

The exam currently tests 13 different subject areas:

• Constitutional Law (Federal)
• Contracts (Common Law and Uniform Commercial Code)
• Criminal Law and Procedure
• Evidence (Federal Rules of Evidence and the California Evidence Code)
• Real Property
• Torts
• Wills (California law)
• Trusts
• Civil Procedure (Federal Rules of Civil Procedure and the California Code of Civil Procedure)
• Community Property (California law)
• Professional Responsibility (California law and the ABA Model Rules of Professional Conduct)
• Business Associations (Corporations, Agency, all forms of Partnerships, and Limited Liability Entities)
• Remedies

The essay section of the exam accounts for 39% of the total score. Applicants sitting for the California Bar Examination do not know which of the 17 subjects listed above will in fact be tested on the essay portion of the examination. In recent years, it has been increasingly common for the exam to feature one or more "crossover" questions, which tests applicants in multiple subjects. Examples of past tested essays with sample answers are available on the California State Bar website or BarEssays.com.

California-specific legal knowledge is required only for Evidence, Civil Procedure, Wills, Community Property, and Professional Responsibility; for the other topics, either general common law ("bar exam law") or the federal laws apply. Beginning in July 2007, applicants may be tested on the California Evidence Code and the California Code of Civil Procedure in the essay portion of the exam in addition to the Federal Rules of Evidence and Federal Rules of Civil Procedure.

The Multistate Bar Examination (MBE) portion of the exam is a nationally administered, 200-question multiple choice exam. As of February 2007, only 190 questions are scored, and the other 10 are unscored experimental questions used to gauge their appropriateness for future exams. The MBE covers only the topics of contracts (including sales of goods under Article 2 of the Uniform Commercial Code), real property, torts, constitutional law, criminal law and procedure, and the Federal Rules of Evidence. While the essay section of the exam may test one or more of these areas as well, the MBE section is dedicated to these subjects.

The MBE counts for 35 percent of the total score in California. For the essay and performance exam portions, applicants traditionally wrote them using pen and paper or typed them on a typewriter. Since 2000, applicants have had the option of using SofTest software to type those portions on a laptop computers.

The performance test portion of the exam is designed to test practical lawyering skills, as distinguished from substantive legal knowledge, by presenting applicants with simulations of actual legal tasks. This section counts for 26% of the total score. The performance test is a "closed universe" setting, meaning that the only substantive information the applicant needs to know is what is provided with the exam. To help applicants remember they are dealing with a closed universe, the performance test scenarios are sited in the fictional "State of Columbia," not California. All cases and statutes necessary to fully analyze the scenario are provided with the performance test, and as provided, the law of Columbia is often somewhat different from the real law in the area at issue, so that applicants who studied that area of law in law school will have no special advantage. Each performance test is worth as many points as two regular essays.

The exam sites are usually large convention centers in Northern and Southern California. Exam security is tight. For example, proctors are assigned to stand in restrooms for the duration of the entire exam to prevent applicants from asking each other for assistance. Additionally, applicants are required to provide fingerprints, photo identification, and a handwriting sample at the testing site.

Overall bar exam pass rates tend to hover between 35% and 55%, and are always the lowest in the United States. When asked about this issue by a journalist, UC Hastings law professor Rory Little said: "We've got a lot of hack people taking the exam who [sic] you really wouldn't want to pass. We've got enough hacks."

The lowest pass rate occurred in February 1983 when 27.7% of takers passed. First-time California Bar Exam takers have a pass rate around 60%. When considering only graduates of ABA-approved schools, the average pass rate for the years 2003–2006 was 54.5%, which was 8.9% lower than the pass rate for Florida, the next lowest "large population" jurisdiction.

Admission of undocumented aliens

In January 2014 it was reported that on February 1, 2014 Sergio C. Garcia, an undocumented immigrant, will be sworn in as a member of the State Bar of California. The bar admission comes almost one month after the state supreme court held that undocumented immigrants were not automatically disqualified from being licensed as attorneys in the state. Under that ruling, as well as a new statute that Governor Brown signed into law taking effect on January 1, 2014 (in order to take advantage of a specific provision of the Personal Responsibility and Work Opportunity Act discussed at oral argument before the state supreme court), Garcia can be admitted to the state bar. Garcia was brought to the United States as a child and remained, according to court findings, undocumented through no fault of his own. He grew up in Northern California, graduated from college and law school. He passed the California Bar Exam on the first try, and satisfied the Committee of Bar Examiners of his good moral character.

Professional responsibility

California is currently the only state that does not use either set of professional responsibility rules developed by the American Bar Association. California professional responsibility law is divided among California Business & Professions Code Section 6068 (the statutory duties of an attorney), the California Rules of Professional Conduct (CRPC), and a number of uncodified cases. A few of the CRPC rules have clearly been inspired by ABA rules, though. A number of innovations in professional responsibility law have first arisen in California, such as Cumis counsel.

Of all American states, California imposes the strongest duty of confidentiality upon its attorneys. There were no exceptions to the duty until 2004, when Business & Professions Code Section 6068 was amended to add a single discretionary exception to prevent imminent death or great bodily harm. The amendment was borrowed from the ABA Model Rules of Professional Conduct.

Since 2001, the Commission for the Revision of the Rules of Professional Conduct of the State Bar of California has been attempting a comprehensive revision of the California rules that would, among other things, convert them into a heavily modified, localized version of the Model Rules. That is, the result would look like the Model Rules, but with appropriate modifications to preserve the substance of existing California rules that better reflect local laws and customs.

However, the Commission's progress has been very slow, simply because there are so many substantive and structural differences between the California rules and the Model Rules. The Commission finally finished nearly all the revisions in 2010 and the State Bar Board of Governors (later renamed the Board of Trustees) ratified them in July and September of that year. However, the proposed revisions will not go into effect until also approved by the Supreme Court of California. As of 2014, 11 of 67 proposed rules have been finalized and submitted to the Court for its approval.

Lawyer discipline

California has the only state bar that operates its own State Bar Court, staffed by judges who specialize only in handling professional responsibility cases on a full-time basis (i.e., it is their primary job function). Other jurisdictions either appoint special masters on an ad hoc basis to adjudicate such cases, or have disciplinary commissions or boards that function on a part-time basis and hold relatively informal hearings.

Complaints against attorneys are investigated and prosecuted by the State Bar's Office of the Chief Trial Counsel. Under the State Bar Act, upon receiving a complaint, the Bar may choose whether to open an investigation. If the Bar does find sufficient evidence of misconduct, decides that it has standing, and decides to take action to impose discipline, it has the power to proceed against accused attorneys either in the Supreme Court of California or in the State Bar Court. The State Bar holds that it may decline to review complaints that are not made by a judge who heard a matter related to the complaint.

Complaints of professional misconduct are usually first prosecuted in the Hearing Department of the State Bar Court. If the lawyer disagrees with an adverse decision, he or she may appeal to the Review Department of the State Bar Court, and from there to the state supreme court. Although the State Bar Court's decisions are technically only recommendations, the distinction is largely academic. Failure to comply with conditions imposed as part of any form of lesser discipline short of disbarment can itself result in a recommendation of disbarment, which is virtually always ratified because the attorney's noncompliance with the State Bar Act will have been clearly established by that point.

Lawyer services

The State Bar's primary interface with its attorney members is the Member Services Center, which keeps member personal information up-to-date, sends out annual fee statements, collects fees, and sends out annual membership cards. The State Bar also offers CalBar Connect, a Web site which lists third-party vendors who currently offer discounts to State Bar members (as well as any relevant discount codes).

The Office of Section Education & Meeting Services coordinates the operations of optional topic-specific subassociations known as "Sections," which each separately charge an additional annual fee of $75. There are currently 16 Sections; each is headed by its own separate executive committee. Each Section publishes its own specific newsletters and other publications, presents educational seminars, recommends proposed legislation to be incorporated into the State Bar's legislative program, and comments on proposed administrative regulations and rules of court.

The Department of Legal Specialization, under the supervision of the Board of Legal Specialization, officially certifies legal specialists in 11 different practice areas. It was first announced in February 1971 as the first such program anywhere in the United States. It began actual operations in 1973 with three practice areas initially available: workers' compensation, criminal law, and tax law.

The Minimum Continuing Legal Education Program, launched in 1990, certifies continuing legal education providers and enforces the MCLE requirement (currently 25 hours every three years) through random audits.

In 1994, the State Bar launched its own official monthly newspaper, the State Bar Journal, which was mailed to all members each month. In March 2010, due to sagging advertising revenue, the Journal became a purely electronic publication.

The Lawyer Assistance Program, created in 2002, assists lawyers with mental health and substance abuse problems.

The Mandatory Fee Arbitration Program, created in 1978, resolves attorney-client disputes over attorney fees. It is voluntary for clients but mandatory for attorneys if the client demands it.

The Annual Meeting Office organizes the State Bar's Annual Meeting, which traditionally alternates between Northern and Southern California.

The State Bar also operates Continuing Education of the Bar as a joint venture with the University of California.

Other responsibilities

The State Bar operates the Committee on Judicial Nominees Evaluation, which conducts confidential evaluations of persons identified by the Governor as candidates for judicial office and produces a rating of "exceptionally well qualified," "well qualified," "qualified," or "not qualified."

The Office of Governmental Affairs represents the interests of the State Bar in the Legislature in Sacramento.

The Office of Legal Services consists of two parts. The first part is the Center on Access to Justice, with a variety of administrative responsibilities such as certifying lawyer referral services, and the second part is the Legal Services Trust Fund Commission, which administers the state Interest on Lawyer Trust Accounts program, the Equal Access Fund, and the Justice Gap Fund by making grants to nonprofit organizations that provide legal services to low-income Californians.

The Office of Bar Relations Outreach serves as a liaison to voluntary bar associations; California currently has over 270.

The Client Security Fund Commission operates the Client Security Fund, which provides compensation for clients whose attorneys committed certain types of crimes against them like theft or embezzlement.

External links

• Official website