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