Wednesday, December 26, 2007

kanBARoo Court. 20th Installment. The State Bar VERSUS the Right to Self-Representation

Regulations confining law practice to lawyers are mystifying and irrational. The California Constitution provides for parties’ self-representation by right, yet unlike almost every other right-establishing law, the legal framework nearly abolishes delegation. Could you imagine a law that requires children to attend particular schools, yet the law does not require actual school attendance? Or a law that invalidates auto insurance purchased from any but carefully screened insurers, while imposing no requirement that a driver carry insurance? As comparison shows, prohibiting the unauthorized practice of law does not aim specifically at eliminating pretenders but at limiting freely chosen advocacy. In legal parlance, the contract with the unlicensed lawyer is void, not voidable by the purchaser, as a law narrowly drawn to protect the purchaser would require. The regulation of non-licensed builders provides an example of the narrow drawing of restrictions, intended to target misleading claims by occupational pretenders. Under Business and Professions Code section 7031, unlicensed contractors can enforce no contractual claims, but the law does not purport to make their employment impossible, as the employer can still enforce its claims. Compare with the combined effect of rules, statutes, and decisional law on unauthorized practice of law, excluding the unadmitted from court.

A formal right to self-representation co-exists with a prohibition on delegating that right to anyone but Bar-admitted attorneys. This anomaly exposes the prohibition as a Legislative runaround of rights to self-representation. If litigants can come before the courts pro se, why can't they choose representation by a non-lawyer? Delegated advocacy carries advantages over self-representation, including not only the lawyer’s legal knowledge but also any advocate’s potential objectivity. The party choosing non-lawyer advocacy over self-representation may gain objective representation, which even the self-representing lawyer may lack.

Granting parties their full right to self-representation, which includes the right to delegate its exercise, collaterally allows solving the problem of the oppressive and primitive State Bar rules, because 1) the Bar would no longer be charged with protecting the public, and 2) the Bar would no longer be empowered to regulate the practice of law. These measures would unburden a reformed Bar of publicly imposed simplistic demands for accountability. Litigants needing protection beyond the criminal and civil laws of breach of contract, negligence, fraud, and breach of fiduciary duty, could choose a Bar-endorsed attorney. The reforms would free the Bar to develop standards that actually reflect competent practice. Fewer are competent as lawyers than the two-thirds of candidates passing the Bar exam first try, but as long as the Bar controls the right to practice, rather than merely enhancing a Member's reputation, both law and politics will limit the test's rigor.

The structure of the State Bar is as anomalous as its rules. The Active among so-called Bar Members vote for ceremonial Bar officers, but Members do not actually control the Bar, which is a quasi-autonomous public corporation run by a politically appointed Board of Governors. To change the rules in favor of much greater legal sophistication, the State Bar's structure must be thoroughly professionalized.

• The State Bar's monopoly on the practice of law should be eliminated;
• The State Bar should become a purely professional organization, providing only a mark of competence and integrity, whose worth will depend on the honorability and cohesiveness of the profession.

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