State Bar of California

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. [See California Business and Professions Code sections [http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10159&id=1269#6064 6064] (empowering State Bar to certify admission of applicants) and [http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10159&id=1274#6078 6078] (empowering State Bar to recommend disbarment, suspension, or reproval)] The State Bar was legally established on July 29, 1927, when the State Bar Act went into effect. [Anonymous, "Introductory: The Genesis and Development of the State Bar," xiii-xix, in the "Proceedings of the First Annual Meeting of the State Bar of California" (San Francisco: The Recorder Printing and Publishing Co., 1929), xvi.]

Today, the State Bar is the largest state bar association in the United States, with 216,000-plus members as of June 2008, of whom over 160,000 are on active status. Just like the Supreme Court of California, it is headquartered in San Francisco, with branch offices in Los Angeles and Sacramento.

Legal status

California is among the majority of American states that operate an integrated bar, in which the bar association is integrated with the judiciary. Article 6, Section 9 of the California Constitution is as follows:

: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's structure, responsibilities and powers are further elaborated upon in the State Bar Act at Sections 6000-6238 of the Business and Professions Code. Anyone who practices law in the state of California must be a member of the State Bar, or else he or she will be guilty of the crime of unauthorized practice of law. The only exception is for patent attorneys who restrict their practice to patent law; a U.S. Supreme Court decision in 1963 prohibited states from restricting the practice of patent law. [See "Sperry v. Florida", ussc|373|379|1963. Accord, "Benninghoff v. Superior Court (State Bar of California)", [http://online.ceb.com/CalCases/CA4/136CA4t61.htm 136 Cal. App. 4th 61, 74] (2006) (interpreting "Sperry" as preventing State Bar from regulating federal administrative practice in general).] The United States Patent and Trademark Office is responsible for certifying patent attorneys, who must be admitted to a state or territorial bar and pass that agency's registration examination.

The formation of the State Bar

The State Bar's predecessor was a voluntary state bar association known as the California Bar Association. ["Genesis and Development," xiii.] 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 the relevant Quebec statute as a model. ["Id."] However, at that time, the CBA did not take the proposal seriously. ["Id."]

It took almost ten years to establish an integrated bar in California. ["Id."] Sullivan, who was also the President of the Bar Association of San Francisco, organized BASF committees to draft and propose appropriate legislation. ["Genesis and Development," xiii-xiv.] Both BASF-drafted bills died in the California Legislature, in 1919 and 1921. ["Genesis and Development," xiv-xv.] 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. ["Genesis and Development," xv.] That version died when Governor Friend Richardson gave it a pocket veto. ["Id."]

After two more years of lobbying, the CBA tried again. ["Genesis and Development," xvi.] Governor C. C. Young signed the State Bar Act into law on March 16, 1927. ["Id."] 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. ["Id."] The State Bar immediately mailed out registration forms (demanding a $3 preorganization fee as authorized by the Act) to all California attorneys. ["Id."] 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. ["Genesis and Development," xvii.] These lawyers then voted by mail for the State Bar's first Board of Governors. ["Id."] 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. ["Genesis and Development," xviii.] By the time the dinner started, 9,602 lawyers had registered. ["Id."] 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. ["Id."]

The fee authorization problem

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

In October 1997, then-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 claimed that the State Bar had become bloated and inefficient, and he criticized its Conference of Delegates for taking positions on divisive political issues like abortion. [Bob Egelko, "Judgment Time For State Bar," "Los Angeles Daily News", 21 June 1998, p. N9.] 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 which they found abhorrent. "Keller v. State Bar of California", ussc|496|1|1990.

As a result, the State Bar was forced to lay off 500 of its 700 personnel on June 26, 1998. [Harriet Chiang, "State Bar Layoffs Mean Slow Complaint Response," "San Francisco Chronicle", 26 June 1998, sec. A, p. 21. ] 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", [http://online.ceb.com/calcases/C4/19C4t582.htm 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 which 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. [Don J. DeBenedictis, "New group replaces Conference of Delegates," "Los Angeles Daily Journal", 16 October 2002, 1.]

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.

The different ways to become an attorney in California

California provides three basic paths to becoming a licensed attorney: [ [http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Bar_Exam.gif&sCategoryPath=/Home/Attorney%20Resources/Bar%20Exam&sHeading=Rules%20Regulating%20Admission%20to%20Practice%20Law%20in%20California&sFileType=HTML&sCatHtmlPath=html/Admissions_Rules-Regulating-Admission.html Rules Regulating Admission to Practice Law in California, The State Bar of California] ]
# Attending a law school accredited by the Committee of Bar Examiners or approved by American Bar Association and passing the California bar examination.
#Study law for at least four years by:
#:* Attending a law school approved by the State of California to award professional degrees but is unapproved 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.)
# Already being licensed in another state or foreign jurisdiction 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 exam. Regardless of the path one takes to becoming a licensed attorney, most bar applicants take a special preparation course for the exam immediately following their graduation from law school.

There is no citizenship requirement for admission to the California bar; 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 depending on circumstances.

Prospective applicants must also pass the Multistate Professional Responsibility Examination and undergo an extensive background check to determine if the applicant has the "good moral character" necessary to practice law in California. Obviously, 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.

"Baby Bar"

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.

Today, most states have revoked this "traditional" method instead opting for attorneys to attend law school. However, a few states still allow the traditional method of reading for the law. California is one such state. In fact, there are many ways to become an attorney in California. Those students choosing to become a licensed attorney through law schools and programs unaccredited by the ABA or State Bar of California Committee of Bar Examiners (such as an online law school), or if the student does not first possess a four-year college degree prior to being accepted into an accredited program or law school, must 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 only receive credit for their first year of law study and nothing more. It is incorrect to assume that any additional 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 educational requirements. [G. Jeffrey MacDonald, "The self-made lawyer: Not every attorney goes to law school," "The Christian Science Monitor", 3 June 2003, 13.] If the candidate has no college degree, he or she may take and pass the CLEP, or College Level Examination Program. 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.

The California Bar Examination

California administers what is widely considered the nation's most difficult bar examination twice each year, in February and July. [Anna Oberthur, “Raising the Bar and the Meaning of Success: California’s Notorious Legal Exam Becomes a Crossroads Where Failure Can Lead to Happiness,” "San Francisco Daily Journal", 23 May 2006, 1.] [Howard Mintz, “Crunch time for law students: Would-be lawyers prep for one of nation's toughest exams,” "San Jose Mercury News", 7 July 2007, 1A.] Several prominent attorneys and politicians have either never passed, or had difficulty passing, the California Bar Exam. (It should be noted that an "attorney" is one who has passed the Bar exam, not someone who has graduated from law school. Indeed, many law professors are not attorneys.) Significant among these are Antonio Villaraigosa (a law school graduate who never passed the Bar exam after failing four times), Kathleen Sullivan (who failed the bar in July 2005 but passed on her second attempt in February 2006), Jerry Brown (who took it twice before passing) and Pete Wilson (who passed on his fourth attempt). [Oberthur, 1, and Mintz, 1A.] Unsuccessful applicants have even sued the State Bar—unsuccessfully—on the grounds that the exam is unnecessarily difficult. ["In re Admission to Practice Law", [http://online.ceb.com/calcases/C2/1C2d61.htm 1 Cal. 2d 61] (1934).]

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 other state with a longer exam is Louisiana, and that state's exam is arguably less arduous because unlike all other bar exams in the United States (which are given on consecutive days), it is administered on Monday, Wednesday, and Friday.

Typically, the California Bar Examination 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 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 17 different subject areas:

* Constitutional Law (Federal)
* Contracts (Common Law & UCC)
* 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 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 one or more "crossover" questions to appear on the examination. A "crossover" question is one that tests applicants in two or perhaps three subjects in one essay question.

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 portion of the exam is a nationally administered 200 question multiple choice exam (as of February 2007, only 190 questions are scored -- the other 10 are unscored experimental questions used to gauge their appropriateness for future exams), and counts for 35% of the total score in California. 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 & 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 limited to the aforementioned subjects.

The MBE has always been administered through the standard method of having applicants fill in bubbles on a paper form with a No. 2 pencil. As 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 special software known as SofTest to type those portions on their laptop computers.

The performance test portion of the exam is designed to test practical lawyering skills by presenting applicants with simulations of actual legal tasks. This section counts for 26% of the total score. The performance exam is a "closed universe" setting, meaning that the only substantive information the applicant needs to know is what is provided with the exam. Even if cases and statutes are provided, they are often 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.

The exam sites are usually large convention centers in Northern and Southern California. Exam security is notoriously 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. [Oberthur, 1.] 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. [Mintz, 1A.] The lowest pass rate occurred in February 1983 when 27.7% of takers passed. First-time California Bar Exam takers, however, have a pass rate around 60%.

Many pundits postulate that one reason for the low pass rates is that California allows graduates of law schools that have not been accredited by the American Bar Association to take its bar exam. [Mintz, 1A.] Graduates of ABA schools have a first-time pass rate of approximately 69%, while graduates of non-ABA schools pass at a rate of about 25% on the first try (in 2005, first-time takers who attended non-ABA schools passed at 25.9% rate). [ [http://www.calbar.ca.gov/calbar/pdfs/admissions/Statistics/JULY2005STATS.pdf July 2005 bar examination statistics, State Bar of California] .] When asked about this issue by a journalist, law professor Rory Little bluntly stated, "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." [Mintz, 1A.]

Another reason for the low passage rate is that repeat takers may take the exam as many times as necessary to pass; ["In fact, one of the reasons for the low pass rate in California is that the state is one of the few to allow aspiring lawyers to take the exam as many times as they want. The pass rate for 'repeaters,' as they are called, is much lower than for first-time test takers, typically students fresh out of law school." Mintz, 1A. In fact, of the 50 U.S. states and the District of Columbia, 34 place no limit on the number of times the bar exam can be taken, although two of these states specify that an applicant who has failed a certain number of exams must wait a full year before taking the exam again. [http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/2007CompGuide.pdf Comprehensive Guide to Bar Admissions 2007] , National Conference of Bar Examiners and American Bar Association Section of Legal Education and Admissions to the Bar, pp. 17, 20.] Approximately 15% of repeaters pass the exam on each administration. [ [http://www.calbar.ca.gov/calbar/pdfs/admissions/GBX/JULY2004STATS.pdf July 2004 bar examination statistics, State Bar of California] ] [ [http://www.calbar.ca.gov/calbar/pdfs/admissions/Statistics/JULY2005STATS.pdf July 2005 bar examination statistics, State Bar of California] .]

However, summary statistics compiled by the National Conference of Bar Examiners show that when considering only graduates of ABA-accredited schools, the average pass rate for the years 2003-2006 was 54.5% — 8.9% lower than the pass rate for Florida — the next lowest "large population" jurisdiction. [National Conference of Bar Examiners, [http://www.ncbex.org/bar-admissions/stats/ Bar Admission Statistics] ]

Professional responsibility

California and Maine are the only states that do not use either set of professional responsibility rules developed by the American Bar Association. California professional responsibility law is divided between California Business and Professions Code Section 6068 (the statutory duties of an attorney), the California Rules of Professional Conduct, 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 is notorious for imposing the strongest duty of confidentiality upon its attorneys. There were no exceptions to the rule until 2004, when Business & Professions Code Section 6068 was finally amended to add a single discretionary exception to prevent imminent death or great bodily harm. The amendment was clearly borrowed from the ABA Model Rules of Professional Conduct.

Lawyer discipline

The State Bar is the only bar association that operates a State Bar Court, equipped with judges who specialize in handling professional responsibility cases. 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 which are not made by a Judge which 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.

References

External links

* [http://www.calbar.ca.gov Official website]