BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                SB 163
                                                                Page  1


        SENATE THIRD READING
        SB 163 (Evans)
        As Amended September 2, 2011
        Majority vote 

         SENATE VOTE  :39-0  
         
         JUDICIARY           8-1         JUDICIARY           8-1          
         
         ----------------------------------------------------------------- 
        |Ayes:|Feuer, Wagner, Atkins,    |Ayes:|Feuer, Wagner, Atkins,    |
        |     |Dickinson, Beth Gaines,   |     |Dickinson, Beth Gaines,   |
        |     |Huber, Monning,           |     |Huber, Monning,           |
        |     |Wieckowski                |     |Wieckowski                |
        |     |                          |     |                          |
        |-----+--------------------------+-----+--------------------------|
        |Nays:|Jones                     |Nays:|Jones                     |
        |     |                          |     |                          |
         ----------------------------------------------------------------- 
         SUMMARY  :  Implements major changes to the governance structure of 
        the State Bar (Bar) to maximize the Bar's prioritization of public 
        protection in all of its activities and makes other reforms to the 
        Bar's governance structure.  In addition, the measure provides a $10 
        reduction in dues for all Bar members in 2012 and increases the 
        amount Bar members may voluntarily choose to contribute to help 
        address the ongoing crisis in legal services for the next two years 
        only.  Specifically,  this bill  , among other things:

        1)Provides a $10 reduction in dues for all Bar members in 2012 only.

        2)Provides that protection of the public shall be the highest 
          priority of the Bar.

        3)Revises the composition and size of the board of trustees.
         
         4)Phases in the transition to the smaller board.    

        5)Requires the board to ensure that its open meeting requirements 
          are consistent with, and conform to, the Bagley-Keene Open Meeting 
          Act. 
         
         6)Requires the board to complete and implement a five-year strategic 
          plan.









                                                                SB 163
                                                                Page  2


        7)Increases from the current $10 to $20 for the next two years the 
          amount that Bar members may voluntarily (but need not) choose to 
          allocate to address the ongoing crisis in legal services for 
          Californians of lesser means, unless any Bar member chooses not to 
          support those activities, in which case the member shall receive a 
          commensurate reduction of that amount in their membership dues.

        8)Acknowledges that the Bar has also voluntarily committed to 
          transferring $2 million in 2012 and $2 million in 2013 (unless the 
          bar finds in 2013 that its general fund faces overriding 
          extraordinary circumstances) from non-mandatory dues monies to 
          nonprofit legal services organizations regulated by the Bar to 
          similarly help ensure that all Californians have equal access to 
          justice.  

        9)Places a one-year "pause" on the Governance in the Public Interest 
          Task Force next year to await the new trustee appointments to be 
          made the following year.

        10)Clarifies that specified conflict of interest provisions apply to 
          new public members appointed to the board after the enactment of 
          this measure.  
         
        FISCAL EFFECT  :  None

         COMMENTS  :  According to the current president of the State Bar, who 
        supports this bill, this measure implements the most sweeping 
        changes to the governance structure of the State Bar in decades.  
        Among other reforms, the bill revises the composition and reduces 
        the size of the Bar's governance board, adding for the first time a 
        substantial component of attorney members selected by the Supreme 
        Court.  The bill reduces the size of the board from 23 to 19 members 
        over a three-year period.  The bill also, consistent with other 
        professional statutes, specifies for the first time that the 
        protection of the public is the highest priority for the Bar and its 
        board of trustees (the new name for the members of the board).  

        Last year, AB 2764 (Assembly Judiciary Committee), Chapter 476, 
        Statutes of 2010, created within the Bar the Governance in the 
        Public Interest Task Force (Task Force).  The Task Force was created 
        in response to concerns that actions by the State Bar Board of 
        Governors did not sufficiently take into account the protection of 
        the public.  On May 11, 2011, the Task Force presented its work 
        product to the Supreme Court, Governor, and Legislature in the form 








                                                                SB 163
                                                                Page  3


        of both a majority report, largely supported by the attorney members 
        of the Task Force, and a minority report, largely supported by the 
        public members of the Task Force.  This bill reflects provisions 
        discussed in those reports to improve the Board's governance and 
        other Bar programs.

        At the end of 2010, the State Bar had a surplus in its General Fund 
        of almost $12 million ($11.9 million).  That figure is understood to 
        have grown since then.  In addition to this substantial surplus in 
        its General Fund, the Bar also has another $6.4 million in a "Public 
        Protection Reserve Fund" it created which is designed to use as a 
        "rainy-day" fund to allow the Bar to continue operations should its 
        dues authority not be continued for a period of time.  The Bar's 
        Public Protection Reserve Fund of $6.4 million represents almost 11% 
        (10.7%) of 2010 General Fund operating expenses, 6.4% of total 
        agency-wide operating expenses, and 4.9% of total agency-wide 
        operating revenues.  

        While the Bar's representatives have stated that these percentages 
        are consistent with the recommendations of the Government Finance 
        Officers Association, they have acknowledged such surpluses are 
        extraordinary compared to other government agencies at this time in 
        state history, and they have worked with the chairs of the Judiciary 
        Committees to start to address this continuing surplus in the 
        General Fund through the approaches in this measure, including the 
        $10 rebate for Bar members next year, the increases from the current 
        $10 to $20 for the next two years that Bar members may voluntarily 
        (but need not) choose to dedicate to the ongoing crisis in legal 
        services, and the Bar's voluntary decision to transfer $2 million in 
        2012 and $2 million in 2013 from non-mandatory dues monies to the 
        Bar's "IOLTA" (Interest On Lawyer Trust Accounts) fund to similarly 
        help address the state's decimated legal services programs.    

        Even with the bill's proposed changes, the Bar continues to project 
        substantial surpluses through at least 2015 (a $12.4 million surplus 
        this year, an $8.6 million surplus in 2012, a $7.2 million surplus 
        in 2013, a $9.2 million surplus in 2014, and an $11.4 million 
        surplus in 2015.)   The Bar states that these surpluses do not 
        reflect some anticipated expenditures pertaining to deferred 
        maintenance, personnel costs, and other items.  Nor do they reflect 
        the $6 million plus of additional monies kept by the Bar for its 
        "rainy day" fund.

        Over the past several years, the Bar has generally taken in 








                                                                SB 163
                                                                Page  4


        substantially more money from its members than it has spent.  The 
        Bar indicates it is working to ensure that this tradition of 
        substantial variance between its projected expenses and actual 
        expenses - leading to potentially higher annual dues assessments 
        than have been needed - is halted.  The Bar notes that provisions in 
        this legislation which provide Bar members with a reduction in their 
        membership dues will help reduce the continuing surpluses that the 
        Bar has traditionally been running.   

        As the Assembly Judiciary Committee knows well, funding for 
        nonprofit legal aid organizations that assist indigent Californians 
        with basic legal needs has never been adequate to the task, 
        generally addressing only about 20% of legal needs.  Sadly this gap 
        is increasing because of the hardships suffered by many poor people 
        in the current economic downturn combined with budget cuts from both 
        government and private sources.  California commits proportionally 
        less public support for legal aid than many other states, and this 
        support has diminished as the result of state budget cuts.  Federal 
        funding through the Legal Services Corporation is also down 
        significantly, and private giving has decreased as well.  

        California has traditionally relied principally on the Interest On 
        Lawyer Trust Accounts program to fund legal aid programs.  Over the 
        last three years, however, revenues from the trust fund program have 
        decreased 75% from $20.1 million in 2007-2008 to approximately $5 
        million in the current year. 

        These revenues are expected to remain at this historic low because 
        interest rates are not predicted to increase for some time. 
        Virtually every state has faced the same emergency.  One of the most 
        common and successful approaches has been to raise attorney license 
        fees specifically for the purpose of funding legal aid programs.  
        Ten states now have such fees, ranging from a low of $20 to a high 
        of $75, with an average of $43.  In many states these fees are 
        actually mandatory, without an opportunity to opt-out, reflecting 
        the special obligation members of the profession have to ensure that 
        fundamental access to the legal process and the rule of law does not 
        depend on income.  However the approach taken in this measure is 
        purely voluntary, giving each Bar member the option of deciding 
        whether they wish to have $20 allocated in the next two years to 
        help address California's struggling legal service programs, 
        consistently with established practice, the professional obligations 
        of lawyers, the broad mission for which the Bar has been 
        established, and the careful guidance of pertinent case law.  (See 








                                                                SB 163
                                                                Page  5


        Keller v. State Bar, 496 U.S. 1 (1990); Chicago Teachers Union v. 
        Hudson, 475 U.S 292 (1986); Abood v. Detroit Bd. of Ed., 431 U.S. 
        209 (1977).)  In the event that any Bar member chooses not to 
        support those activities, the member shall receive a commensurate 
        reduction of that amount in their membership dues.

        On April 30, 2011, the Bar released its annual discipline report for 
        the year ending December 31, 2010.  The audit noted that the overall 
        backlog at the end of 2010 is 4,193 cases, an increase of over 60% 
        from the numbers for the previous year, under the adjusted 
        methodology used in the report.  The Bar indicates it is working 
        hard to take critically-needed steps to improve this unacceptable 
        professional discipline record.

        On June 18, 2011, at a special session, the current Bar board voted 
        to support the measure.  And on Friday, June 24, 2011, the Bar's 
        Board Operations Committee, representing the full board at those 
        times when the full board is not in session, voted unanimously to 
        support this bill.  
         

        Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334 FN: 
        0002731