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2003 NCBP MIDYEAR MEETING HIGHLIGHTS
The National Conference of Bar Presidents and Metropolitan Bar Caucus
held their annual meetings August 7-9 in San Francisco. Several of the
topics discussed are summarized in this edition of
The Conference Call.
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Plenary: The Future is Now
James L. Thompson, NCBP Communications
Committee
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Many would like
to return to the way things used to be. Never has the status quo or
incumbency been worth less - major corporations, such as Sears, lost the
ability to deal with the business that they invented and others took over.
Same with law firms. We as lawyers sometimes walk through life backwards
using the principle of "stare decisis"; and often bar associations are not
particularly helpful in changing this approach when they use the lodge or
guild mentality to protect the status quo. That mentality and the lawyers
monopoly declined following the Supreme Court decision in the Goldfarb
case in 1975 which eliminated minimum fee schedules and the Bates decision
in 1977 which permitted lawyers to advertise.
Against this backdrop, Charlie Robinson, legal futurist and practice
management expert, asked us to consider whether some of the events and
issues which lawyers face represent cycles or trends. He defines a cycle
as a period of time within which a round of regularly recurring events
repeat themselves, such as with weather or the stock market. A trend, on
the other hand, is different. A trend is a general or prevailing tendency
or course of events which may change things permanently and the status quo
may never reoccur again - increasing use of technology and the internet is
one example.
Consider some of the following events, whether they are cycles or trends,
and how they effect the future:
One is tort reform. There are a number of people in business and the
political world who regard our current tort system as economically
destructive litigation and seek its curtailment. Over the past 10 years,
bills have been adopted in over 20 states to limit the amount of damage
awards, to eliminate joint and several liability, and to put caps on pain
and suffering damages. What effect will this movement have on the legal
system or on the public? Is this a cycle or a trend?
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second event is unauthorized practice of law (UPL). Thirty years ago,
whatever lawyers did was considered the practice of law, but non-lawyers
were universally precluded from crossing this ill-defined boundary.
Today, the situation has changed dramatically and most attorneys general,
bar counsel or grievance commissions who enforce UPL permit these
non-lawyer practices to grow and proliferate, taking the view that if
there is "no harm" to the public or to the client, then there is "no
foul." They ask, “Are we protecting the public or the lawyers from UPL?”
Recently, the ABA Task Force on the Model Definition of the Practice of
Law defined the practice of law in an effort to curtail the UPL problem,
however, the Department of Justice and the FTC considered the ABA
definition to be too restrictive (possibly anti-competitive) and concluded
that non-lawyers could do many of the activities which lawyers do and do
them less expensively. Is this laissez faire attitude a cycle or a trend?
Perhaps Mary K. Ryan of the ABA Standing Committee on the Delivery of
Legal Services is right and lawyers in the future must provide better
service and more quality on a cost effective basis if they wish to
compete. How much of a lawyer's day is spent on non-legal matters and
issues? Expect more competition in these areas with consultants,
paralegals, investment advisors and others in a broader range of areas and
on a broader geographic basis.
Consider the continuing incursion of non-lawyer groups with MDP or its
equivalent and the time when state borders will cease to have relevance.
Increased technology is creating entirely new law office dynamics - our
staffing patterns, place of work, libraries and economic models have
changed dramatically. In the future, all the lawyer will need will be a
computer and a dog. Robinson explained that the computer (having
artificial intelligence) would practice law, the dog would keep the lawyer
away from the computer and the lawyer would feed the dog.
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Richard Susskind,
the guru of future legal trends and author of "The Future of Law,"
suggested that law practice might be reshaped such that traditional law
practice would only be engaged in by the largest mega-firms. The more
routine areas of law practice would be "commoditized," resulting in heavy
competition between lawyers and non-lawyers to perform that practice
better, faster and cheaper. The balance of what was once law practice
would not require a lawyer at all since it could be taken care of on a pro
se basis, often by the Generation X'ers who prefer to handle their own
legal affairs using forms and supporting materials currently on the
internet.
Toward the end of
this discussion, Robinson asked why institutions fail. Typically it is
because they cannot escape the past or create the future. He then
introduced us to an old Dakota Indian saying, "When you discover you are
riding a dead horse, the best course of action is to dismount". Usually
law firms do anything but that. They attempt to solve the problem by
declaring that the horse is not dead, by riding it harder, by buying a
stronger whip, by changing riders, by appointing a committee to study the
horse, by increasing standards to ride dead horses, or by harnessing
several dead horses together for increased speed. Is that the future?
Robinson ended his discussion by encouraging lawyers and the bar
associations they represent to develop a vision for the year 2010, to
discard some of our "toxic" ideas (such as the idea that we have a
monopoly on the practice of law) and to articulate and more clearly define
our core values. He wants us to be aware of the trends and to avoid traps
and toxic thinking. He suggested that honor and integrity, nobility,
decency, respect and character are our most important values as
distinguished from simply being amoral technicians. He suggested that we
consider and embrace the Professional Reform Initiative (PRI) as well as
the concepts developed by the ABA Futures Committee. It is time to assess
and address these trends and the new possibilities. The future is now.
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Other Workshops at the NCBP 2003
Annual Meeting:
The Vital Role of Bar Leaders in Fundraising for Legal Services,
Moderator: Meredith McBurney, 303/329-8091,
m8091@aol.com
How to Attract and Involve Large Firms and Corporate Lawyers in the
Bar, Moderator: Kay H. Hodge, 617/542-6789,
khodge@scmllp.com
How Bar Associations Can Help Members Provide Legal Services to
Clients, Moderator: Joe Crosthwait Jr., 405/733-1684,
joe.crosthwait@lawoklahoma.com
Partnering to Develop Your Desktop CLE Presence,
Facilitator: Peter Glowacki, 312/988-6342,
glowackp@staff.abanet.org
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Contact:
Charles F. Robinson, 727/441-4516,
CharlieR@Charlie-Robinson.com
Resources:
For more information about the ABA Futures Committee, call the ABA Law
Practice Management Section at 312/988-5646.
Find out more about the activities of the NCBP Professional Reform
Initiative (PRI), by contacting W. Seaborn Jones, at 404/688-2600 or
jones@og-law.com
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Workshop: Leading in Challenging Times
C. Joseph Holland, NCBP Communications
Committee
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The Friday
morning plenary session featured a panel presentation by James E. Herman,
president, State Bar of California; Michael Miller, immediate past
president, New York County Lawyers Association; and Thomas M. Susman,
partner, Ropes & Gray, and was facilitated by Kay Hodge, member, NCBP
Executive Council. The panel shared firsthand lessons on how the organized
bar can be heard in the political arena and influence it.
The discussion often addressed the money woes facing the legal system, but
the principles applied to all efforts bar leaders and associations make to
influence decision makers.
Each presenter brought a different experience and perspective to the
process. Tom Susman practices in Washington, D.C., and lobbies
extensively. While he felt that lawyers are natural lobbyists because of
their expertise as analysts, talkers, and negotiators, those skills needed
to be applied differently in the legislative arena. Listening and
presenting short items in bullet points are often more effective than
talking and writing lengthy materials.
Lawyers need to understand that a compromise is not a loss - it's often
the norm in politics. He also emphasized the importance of being prepared,
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the setting, e.g.
the House v. the Senate, party affiliation, and individual experience of
the legislator.
Recruiting key
contact people ahead of lobbying efforts is very important. Finally, he
suggested that lawyers not rely just upon "hired guns." Nothing is more
effective than local constituent lobbying.
Jim Herman
sounded an identical note. The California courts are facing the same
budget challenges as the courts of nearly every state. Mandatory bars like
the State Bar of California have limitations on the use of funds for
legislative activity.
This year, the bar formed a statewide coalition to reach out to
legislators. It also worked in getting the message out to local bars and
was successful in holding together both mandatory and voluntary bars to
press the legislative issues affecting court funding. This constituent
lobbying mobilized by the bar helped the court's budget plight.
Herman emphasized
the need to work with lawyer-legislators. There are fewer of them than
ever - this is a nationwide experience - but they can be invaluable in
advancing bar issues in the legislature.
Michael Miller agreed with the other panelists and used ABA Day in
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constituent
lobbying by lawyers. However, he also talked about the final alternative
when powers of persuasion fail - litigation. The New York County Lawyers
Association spent years lobbying various ways to increase fees for court
appointed counsel for indigent defendants. When those efforts were
exhausted without success, it sued the state of New York, challenging the
constitutionality of the low fees. The suit pressed the claim that low
fees were creating the risk of a systemic failure of meaningful and
effective counsel. The suit was successful and the legislature responded,
concerned about the effect of the case even though it is on appeal.
The panel demonstrates the need for a well-prepared and multifaceted
approach to lobbying. There is no one size fits all approach that will
work.
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Workshop: Developing and Feeding the
Leadership Pipeline
by Fred D. Gray, NCBP
Communications Committee
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Four veteran bar
leaders of color shared their experiences and insight in the workshop,
"Developing and Feeding the Leadership Pipeline." These distinguished
panelists discussed how to ensure diversity in leadership positions of the
bar. They also addressed the role played by bar associations of color
within the legal community, and how the minority and majority bars can
peacefully coexist and support each other.
NCBP Secretary Lonnie J. Williams served as the moderator and briefly
introduced each panelist - Ruthe Catolico Ashley, president, National
Asian Pacific American Bar Association; Fred D. Gray, past president,
National Bar Association and immediate past president, Alabama State Bar
Association; and Harry S. Johnson, president, Maryland State Bar
Association.
Harry S. Johnson is the first African-American president of the Maryland
State Bar Association. He is a partner in a 140-lawyer firm in Baltimore
and has been a member of the bar for over 24 years. Mentored by a former
NCBP president, Johnson has come up through the ranks to become president
of his state bar association. He described two programs that the Maryland
bar had adopted to increase minority participation in leadership roles in
the state bar. First, the bar created seats on their board of governors
for young lawyers to encourage women and racial minorities to become
active leaders in the bar. Johnson further stated that he came through
that process and was the first minority young lawyer who occupied one of
those seats. However, he stated he was, unfortunately, the only minority
to occupy one of the seats who has also become president of the Maryland
bar.
The second effort is the Leadership Academy, an 18-month program that
gives a diverse group of young lawyers, based on gender, race and
geography, an opportunity to become members of a bar committee and
participate in the inner workings of the state bar association and in
local and specialty bar associations as well. The program has been very
successful and has graduated six classes of leaders with approximately 120
lawyers, all of whom have been assigned to a state bar committee.
While introducing herself, Ruthe Catolico Ashley revealed that the legal
profession was not her first career. She had been a nurse for fifteen
years. In November 2002, she became president of the National Asian
Pacific American Bar Association, an organization whose members are from
the United States and Guam. It is very important to her that Asian
Americans come through the pipeline and become a part of the majority bar.
One program that NAPABA developed
during Ashley's presidential year was the Leadership Advisory Council, a
body made up of all past NAPABA presidents and some very committed
corporate sponsors with the specific purpose of growing young leaders.
Based on personal experience, Ashley strongly believes that if students
are recruited early, they will continue in the leadership program.
Another great venture for NAPABA was working with the ABA Division |
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for Bar Services
and the ABA Standing Committee on Bar Activities and Services. For the
first time last year, the committee met in conjunction with the Coalition
for Bar Associations of Color, the leadership of the four national ethnic
bar associations, as well as the NAPABA Board. She said it has taken 30
years for Dennis Archer to become the first president of color, an
achievement about which they are very excited. NAPABA is working with the
ABA and local bar associations to find willing young leaders and get them
into the pipeline so those who are now on ABA committees will know they
are candidates for leadership.
From left: Workshop panelists Fred D. Gray, Ruthe
Catolico Ashley and Harry S. Johnson.
Lastly, Fred D. Gray, the senior panelist, has been practicing law for
almost 50 years, and has a background steeped in civil rights. He
represented Claudette Colvin, a 15-year old African American girl who was
arrested on March 3, 1955, nine months before Rosa Parks was arrested
under similar circumstances. He also represented Parks, who refused to
give up her seat on a Montgomery, Alabama city bus, igniting the
Montgomery Bus Boycott and serving as a catalyst for the civil rights
movement.
Gray was the first civil rights lawyer for Dr. Martin Luther King Jr. and
represented the participants in the infamous Tuskegee Syphilis Study.
Involved in many civil rights cases in Alabama during the 50s, 60s and
70s, he never dreamed of becoming president of the Alabama State Bar. Gray
was the first African American to serve on the Alabama Board of Bar
Commissioners in 1980, and one of the first two African Americans in the
Alabama Legislature since Reconstruction. He was elected president-elect
of the Alabama State Bar without opposition.
When asked about some of the projects he initiated during his year as
president and their level of success, Gray mentioned that upon becoming
president-elect he announced that the bar's theme for the entire year
would be "Lawyers Render Service: Service to Clients, Service to the
Profession, Service to the Community." During Gray’s term as president,
the state, local and specialty bars all worked toward developing the
theme, "Lawyers Render Service." When Gray's term ended, his successor, in
his first official meeting, recommended that the Board of Bar
Commissioners adopt "Lawyers Render Service" as the Alabama State Bar’s
motto. The commissioners adopted the recommendation in September 2003.
Secondly, Gray created a Task Force
on an Alabama Lawyers Hall of Fame to honor outstanding members of the
Alabama bar. The Alabama Board of Bar Commissioners approved the Task
Force's recommendation and will induct its first members in July 2004.
Thirdly, he restructured the Task Force on Diversity in the Profession.
The Board of Bar Commissioners also recommended that the Alabama
Legislature enact legislation creating 10 new seats on the board to
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diversity in
gender, age and geography. Gray stated that it was interesting to note
that within the space of a week, this past August, the National Bar
Association (NBA) and the American Bar Association both had a seminar on
diversity in their respective bar conventions. The NBA also emphasized how
the training received by members can help aspirants to become leaders in
the majority bars like the American Bar Association and the various state
bar associations.
For example, Dennis Archer, Fred Gray and Karol Corbin Walker were all
leaders in the NBA before they were elected the first African-American
president of the ABA, the Alabama State Bar and the New Jersey State Bar
Association, respectively.
Both the ABA and NBA now believe that there is great value in diversity
and that the majority and minority bars can coexist and each play
meaningful roles in developing persons for leadership roles in both. One
way to accomplish this is by having more cooperative programs between the
various bar associations. The ABA has a bar leadership program in which
presidents of minority bars are invited to participate. In its last
convention, the Alabama Lawyers Association (the minority bar in Alabama)
jointly sponsored several programs with the Alabama State Bar, including
the president's reception, CLE programs and participating generally in
state bar activities.
A member of the audience asked, given that since some of the state bar
associations now have minorities as presidents, if there are other
minorities in the pipeline and how long will it be before there will be
others. Gray responded, "Unfortunately in Alabama, I do not see any person
of color in the pipeline who will become president of the Alabama State
Bar in the immediate future. However, our method of electing
presidents-elect does not require that you come up through the system and
it is quite possible that some other minority might emerge and become
president soon. There are many African American lawyers in Alabama who are
well qualified to be president." Gray continued, "I wish other bar
associations would follow the American Bar Association's example with a
minority as the current president and as the president-elect. This is good
and I think it will help other bar associations across the nation to see
that diversity in the profession reaps great benefits."
Contact:
Ruthe Catolico Ashley, 916/739-7099,
RutheAsh@aol.com
Fred D. Gray, 334/727-4830,
firmattys@aol.com
Harry S. Johnson, 410/347-8700,
hjohnson@wtplaw.com
Lonnie J. Williams Jr., 602/382-6358,
lwilliams@swlaw.com
Resources:
The ABA Commission on Racial & Ethnic Diversity in the Profession
produces the Goal IX Newsletter and The Commission Reporter, along
with other publications of interest to bar leaders. Download current
issues or read them online at
www.abanet.org/minorities/
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Kimberly Vann, Editor
The Conference Call is published twice yearly to increase
communication among members of the National Conference of Bar
Presidents. All members are invited to send information on their
bar’s activities to the editor at the following address: ABA
Division for Bar Services, 541 N. Fairbanks Court, Chicago, IL
60611-3314,
phone (312) 988-5364, fax: (312) 988-5492, e-mail:
vannk2@staff.abanet.org
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Workshop: Effectively Managing Conflicts Between the Bar
Foundation and the Bar Association
by Howard A. Shalowitz, NCBP Communications
Committee
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Bar foundation and association leaders
along with executive directors actively participated in "Effectively
Managing Conflicts between the Bar Foundation and the Bar Association," a
workshop co-produced by the National Conference of Bar Foundations (NCBF)
and the Metropolitan Bar Caucus (MBC). This session provided further
exploration of the legal and tax parameters for tax-exempt organizations,
a subject discussed in a workshop during the midyear meeting in Seattle
last February. Marion Smithberger, assistant executive director of the
Columbus Bar Association, moderated this session as he walked around the
room, fielding questions for the panel and presenting hypothetical
situations to the audience.
The panelists were Pauline Gee, immediate past president of the Foundation
of the State Bar of California; Gary V. Pollock, director of
administrative development of the Allegheny County Bar Foundation; and
Crystal Hartley McMeekin, executive director of the Birmingham Bar
Foundation.
This session examined the conflicts which arise between bar associations
and bar foundations. In an excellent fashion, the panel dealt with the
varied issues which may occur during the course of any bar year--
landlord-tenant relationship between foundations and associations,
conflicts in fund raising, programming, financial management and solvency,
dual involvement on boards, and funding projects.
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Many bar foundations own the building in which the bar
association is headquartered. Panel members discussed the relationship
between the association and the foundation and addressed some of the
potential problems.
From left: Workshop panelists Pauline Gee,
Crystal Hartley McMeekin
and Gary Pollock.
Many foundation/association executive directors wear "two
hats" as do some foundation/association board members. The panel members
all agreed that the best way to deal with a conflict that may result from
dual responsibility is for the board member to recuse himself or herself
from voting on or discussing the issue and have the minutes to reflect
that that individual is not participating in the discussion or the vote.
The financial interplay between the bar association and the
bar foundation, especially regarding funding issues, was also discussed.
While some bar foundations actively solicit members of its bar association
by including a statement with its dues, others go into the community to
raise funds from outside of the legal profession. While some foundation
boards manage IOLTA funds, others, particularly voluntary bars, do not. In
addition to fund raising,
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fund spending may become contentious when certain pet
projects need financial support. Typically, the bar foundation serves as
the charitable and philanthropic wing of the bar association. All
panelists agreed that the two entities should remain separate and
distinct. Although boards and projects may overlap, the distinction must
be maintained in order to preserve tax-exempt status for the bar
foundation. The selection and election process were briefly discussed
regarding the leadership on foundation boards. The two greatest caveats
pointed out in this session were not jeopardizing the foundation's
tax-exempt status and not overlapping the fiduciary duty to both
organizations.
Contact:
Marion Smithberger,
marion@cbalaw.org 614/221-2571
Pauline Gee, pauline.gee@doj.ca.gov, 916/323-0335
Crystal Hartley McMeekin,
bbfound@bellsouth.net
205/251-8006
Gary Pollock, gpollock@acba.org
412/402-6640
Resource:
The July/August 2003 issue of Bar Leader features the article,
“Foundations and Associations: Working on the Marriage.” To order a
copy, contact Marilyn Cavicchia at 312/988-6071.
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Photo credits:
Cover, San Antonio Convention and Visitors Bureau; Published
Conference Call pages 5,7, 9, Raymond T. (Tom) Elligett Jr.;
page 6, Howard A. Shalowitz.
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Workshop: Professional Reform
Initiative
by Raymond T. (Tom) Elligett Jr., NCBP
Communications Committee
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Randall Cooper moderated a lively
panel and audience dialogue about NCBP's Professional Reform Initiative,
an ongoing project to respond to public criticism of lawyers. W. Seaborn
Jones, past chair of the initiative, recounted how the program grew out of
concern over the public's loss of respect for lawyers. Noting that bar
association programs in professionalism have not halted the erosion of
public opinion, Jones observed the PRI seeks to identify and correct what
the public does not like about the way some lawyers practice law.
The initiative starts with the premise that attorneys will not tolerate a
lack of integrity, and focuses on the core values of integrity, honesty
and truthfulness. Too often when lawyers in the past have lied to clients,
opposing counsel, or the court, nothing has happened.
Cooper, a member of the initiative, queried what individual attorneys were
willing to do to take on dishonest lawyers. Actions could include outreach
to judges and bars, to requesting the state attorney bring perjury charges
where warranted. He recalled that Arizona Supreme Court Justice Thomas
Zlaket summed up the initiative's policy on truthfulness by lawyers
following the principles: "I will not lie, and I will not let someone else
lie."
Stanford Law School Professor
Deborah Rhode observed that lawyers had been at the forefront of
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every major social reform in the
last century, yet four-fifths of the public think lawyers lack integrity,
the legal system is too expensive, and lawyers are not helping to make it
better.
From left: Brian D. Melton, Deborah L. Rhode and
Randall Cooper.
According to Rhode, most of the profession has focused on public image and
perception, rather than the underlying causes: dishonesty and greed. In
her view, the lawyers causing the problems won't be affected by civility
codes, noting most uncivil conduct already violates ethics rules. Rhode
urged the bar to be more aggressive in disciplining dishonest lawyers, and
to work for better public access to justice for poor and low income
individuals. Responding to an audience question, she said the background
for her comments and additional information could be found in her recent
book, In the Interests of Justice: Reforming the Legal System.
Brian Melton, president of the Dallas Bar Association, reported on the
bar's recent efforts. For fifteen years, the Dallas bar emphasized
professionalism through a lawyers creed, bench bar conferences and
professionalism awards.
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To enhance their
efforts, the professionalism committee selected ten topics, including
implementing the PRI. Other steps included a law school program, programs
to reduce fee disputes and grievance complaints, and a senior lawyer
mentoring program.
Showing adverse
public perception is not uniquely a U.S. issue, audience members from
British Columbia and Australia said lawyers were held in low esteem in
their countries, and opined these suggested actions will not raise the
public view.
Seaborn Jones responded that the PRI hope is that after a longer period,
perhaps within the next twenty years, there will be improvement.
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Workshop: State's Money Woes and the Impact on the
Administration of Justice
by James R. Thompson, NCBP Communications
Committee
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This workshop continued the dialogue
started during the 2003 Midyear Meeting in Seattle, which looked at the
elimination of services due to cuts in court funds and how it affects the
justice system. In the annual meeting workshop, Richard N. Bien,
chair-elect of the Judicial Division of the ABA, moderated the panel that
included presentations by James Herman, president of the State Bar of
California; Judge Christele Marquardt, Kansas Court of Appeals, and
Charles Williamson III, president of the Oregon State Bar.
Bien summarized some of the more significant ways the courts deal with
their fiscal crises--reduction in the hours of operation of the courts;
elimination of travel by court employees and judges; fewer pre-trial
conferences; longer lag times to get cases to trial, particularly civil
cases; hiring freezes; greater workloads on fewer employees; and the early
release of nonviolent criminals into society. He touched on some of the
solutions courts use to close the monetary gap and to mitigate the
problems, such as filing lawsuits to get sufficient funding to meet
constitutionally mandated requirements and services.
However, most states are increasing efforts to work with the legislature
and to educate them concerning these funding problems. One such idea is a
"law school for legislators" that has been implemented in Missouri and
Arizona. Alternative funding has been utilized by increasing filing fees,
adding greater fines and collateral expense which is recouped by the
court. In addition, courts are identifying key court functions where the
court must have priority for funding to meet constitutional mandates.
Following Bien's remarks, Charles Williamson revealed that during the last
biennium (2001-2003), the Oregon courts had staff reductions of 27% and
took Fridays off, thus eliminating trials and personnel expenses on that
day. All court reporters have been laid off and prosecutions have been
discouraged or delayed for any non-people to people crimes. He suggested
that the legislators don't really understand or care about the court's
function per se, but they are concerned with the impact that the lack of
court services has on members of the public - their constituents. The
Oregon judiciary developed a diagram showing court funding with money
going into a barrel and precisely what those dollars fund on a
function-by-function basis. With the governor's reduced budget for the
judiciary, items such as probate, property-only
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domestic relations, small claims and
post conviction relief are eliminated or suspended - no money to fund
them. This is a fairly graphic illustration to let the legislature know
the consequences of these cuts on the court and the problems it created
for their constituents. As of July 1, 2003, the new funding has been
appropriated for the court for 2003-2005 and it appears that Oregon has
received about 95% of the funds requested, so courts will reopen on
Fridays and some of the reduced services can be restored. In obtaining
these funds, they had efficiency studies done, held open houses, worked
extensively with the legislature, increased their filing fees by 30% and
earmarked those funds for the benefit of the court (not the general fund).
Even the members of the judicial branch lobbied for this extra funding.
Judge Christele Marquardt explained the situation in Kansas. The Kansas
Court of Appeals imposed a moratorium on new hires and, if an existing
employee is terminated or leaves, there is a 60-day period before a
replacement can be hired. The judicial deficit has increased from $900,000
in 2001 to a deficit in excess of $2 million in 2002. This situation is
partly being addressed by hiring freezes, eliminating travel and by having
judges do clerical work in issuing their opinions. Fortunately, the
judiciary was successful in convincing the governor that the judicial
budget did not have to continue passing through the governor's office
first, before being sent to the legislature for its consideration.
That change alone has reduced one round of cuts on the
judiciary's budget. The governor (whose husband is an attorney) also
understands that 97% of the judicial budget is salaries. In fiscal year
2003, when there was a $680 million state revenue shortfall and a $3.5
million budget cut for the judiciary, the chief judge created a new
emergency surcharge on litigants (not a tax or service charge) which was
politically controversial especially when the funds were restricted for
use by the judiciary only. It has provided some stopgap funding for the
court and, although the legislature initially opposed it, the legislature
recently asked the court to continue the surcharge for the next fiscal
year. There is some danger that this could become a permanent charge.
Also, Kansas Attorney General Carla Stovall issued an advisory opinion
upholding the validity of the surcharge. The surcharge has created
something of an accounting nightmare since the court must keep the
resultant monies separate from the rest of the budget. Judge Marquardt
closed by saying that, in Kansas, the number of lawyers in the legislature
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As term limits appear to be accelerating
that trend, she wondered how Kansas could get more lawyers in the
legislature who understand and appreciate the problems. Jim Herman,
president of the State Bar of California, spoke about how the bar
organized a statewide effort, including all of the county and specialty
bars, to work with legislators with whom they had personal contact to
restore funding to the judiciary. They identified members of the various
bars who had contacts with legislators and then worked on a bipartisan
basis in the Assembly and the Senate in California with members of both
parties to lead the charge to support the court. This network was
effective in reducing the proposed budgetary reductions in the judicial
budget for trial courts from $116 million to $80 million. However, most of
the discretionary programs initiated by the courts and by Chief Justice
Ron George were eliminated, including mandatory mediation and some of the
self-help programs for pro se litigants. In addition, filing fees on many
types of cases were tripled and focused primarily on funding the critical
areas and constitutionally mandated requirements. The California judiciary
is so large (larger than the entire federal system combined), and has such
a large budget (approximately $2.5 billion) that the magnitude of their
financial problems is tremendous.
Although the members of the California bar were not entirely happy about
increased filing fees, the bar associations kept the members focused on
the importance of this project. Now there is an infrastructure in place
through which the state bar and local bars can work with the courts and
the legislature in the future. The long-term funding for the courts
remains an issue since, with term limits, the age of legislators is
younger and fewer lawyers are part of the legislative process. This
appears to be a national trend.
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Workshop: Tax Advice Relating to Tax Exempt Organizations
by Paul Michael Hassett, NCBP Communications
Committee
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An experienced Internal Revenue Service
manager from the Non-Profit Center of the Internal Revenue Service office
in San Francisco conducted a workshop exploring various problems in
regulation of tax-exempt organizations. Bob Glaves of Chicago, Illinois,
executive director of the Chicago Bar Foundation, moderated this program,
which played to a capacity crowd, and featured Joe Kroll, IRS Tax Exempt
Government Entities Manager for Northern California.
Kroll explored the basic differences between organizations set up as
Section 501(c)3 entities, such as bar foundations, and those organized as
Section 501(c)6 membership organizations, including most bar associations.
He explored the basic difference between the two types of entities: those
organized under 501(c)3 are primarily designed to benefit a charitable
class while those organized under 501(c)6 benefit their members.
Kroll also discussed some problems
resulting from the interplay between (c)3 and (c)6
organizations which share space and share employees, a situation not
uncommon in the bar association context. He noted that the |
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usual method of allocating
expenses between the organizations is acceptable to the Internal Revenue
Service but that it is important to document the basis for the allocation
and to review it occasionally to make sure that it represents current
operations.
Another common situation resulting from the interplay between (c)3 and
(c)6 organizations involves the funding by a charitable organization of a
program sponsored by a membership organization. Kroll pointed out the
importance of the need to maintain records supporting the application of
funds to the exempt purposes of the charitable organization. He suggested
that the membership organization has to account for every dime it receives
and justify the purpose for each expenditure. Conversely, fundraising by
the (c)6 entity for a program of the charitable organization is
appropriate if the charitable organization pays only the expenses directly
related to the fundraising event and the entire net proceeds of the event
are devoted to the exempt purposes of the charity.
Although audits of not-for-profit organizations are often cause for
concern, the basic purpose of an audit is to verify that the organization |
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is appropriately structured as an exempt
activity and that all of the association activities are in furtherance of
its exempt purposes. It is very important that minutes and financial
records be kept accurately and that they reflect the nature of all of the
activities carried out by the organization.
Kroll wound up his presentation with a discussion of overlapping boards of
directors, a not unusual situation, and cautioned that it can sometimes be
difficult to wear more than one hat at a time. Finally, he touched on
lobbying activities and noted that legislative activities are appropriate
for legislation related to the exempt purpose of an organization but that
501(c)3 organizations may not endorse candidates for public office. Kroll
answered many questions from those in attendance and expressed his
willingness to entertain questions related to not-for-profit tax issues in
the future.
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Diversity Fellowships Available for Midyear and Annual
Meetings
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In support of its
commitment to diversity, the NCBP will provide registration fee waivers to
the president or president-elect of minority bar associations for
attendance at the upcoming midyear meeting in San Antonio and annual
meeting in Atlanta. Travel and lodging expenses are not covered by the
fellowships. While the fee waivers are available to leaders from minority
bars nationwide, bar leaders in the San Antonio and Atlanta areas are
particularly encouraged to apply since they will not have to incur travel
and lodging expenses to attend the meetings. For several meetings, the
Minnesota State Bar Association covered the travel expenses for leaders of
minority bars in cooperation with NCBP’s fellowship program. Other state
and metropolitan bars are encouraged to consider this idea. If you are
interested or know of a bar leader who may be interested in a fellowship
to attend an upcoming NCBP meeting, please contact Beverley Ware via
e-mail: bware@staff.abanet.org
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Workshop: Priming the Diversity
Pipeline - Bar/Law School
by C. Joseph Holland, NCBP Communications Committee
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Bringing more minority lawyers into the
profession is one of the challenges constantly facing bar leaders. During
the Saturday morning plenary session, a panel provided ideas on how the
profession and law schools can collaborate to get those minority lawyers
in the pipeline.
Drawing from bar leadership and law schools, both of which have
significant roles in this quest, the panel consisted of Allyson K. Duncan,
president of the North Carolina Bar Association; Kent D. Lollis, associate
executive director for Minority Affairs, Law School Admissions Council;
and Reynaldo A. Valencia, law professor at St. Mary's University in San
Antonio. Cory M. Amron, chair, Legal Education Subcommittee of the ABA's
Presidential Advisory Council on Diversity in the Profession, was the
moderator.
Perhaps the message that came through most clearly is to start recruiting
minority law students early - as early as high school.
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Kent discussed data that demonstrates
that minority students who make decisions early, as early as high school,
do better in law school. Dropout rates in law school is greatest between
years one and two and early preparation helps with retention once the
students are actually in law school.
Mentoring those students in various ways is important. Allyson Duncan
related the North Carolina Bar Association experience with a day long high
school career conference, career days at law schools, bar exam writing
classes, and internships at "majority" law firms for minority students.
Some law schools have strong mentoring programs.
Reynaldo told of the experience in Texas when the Texas Young Lawyers
Division wanted to do a recruitment day for minority students. One key was
getting students to attend the day. Law students did personal outreach by
visiting 17 high schools and 40 colleges to bring in attendees. They
worked with counselors and minority organizations and also used
traditional methods such as distributing flyers.
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There is money available to help with
recruitment efforts. The Texas YLD had a great idea, but no money. They
went to the Law School Admissions Council, which has grant money available
for such efforts, and were successful. Some bar associations and the
national bars of color have helped in the past to fund parts of events.
The message is to try repeatedly while students are making college and
career plans and use the resources that are available.
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Photos from the NCBP Annual Meeting
by Stephen E. Chappelear, NCBP
Communications Committee
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NCBP Immediate Past President David
Houghton greets meeting attendees at the Friday plenary session. |
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Marian McCulloch, Hillsborough County Bar
Association, and Kelly Overstreet Johnson, The Florida Bar, at the Friday
plenary session. |
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NCBP Treasurer Lonnie Williams is joined by
his wife, Laura, and NCBP President Paul Moxley at the NCBP/NABE/NCBF
Joint Reception. |
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Additional photos from the meeting are
available on NCBP’s web site. Go to www.ncbp.org and click on
“Conferences.”
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ABA Day in Washington
May 5-6, 2004
Grand Hyatt Washington
Washington, D.C.
All bar leaders are invited to join ABA President
Dennis Archer, other ABA leadership and state and
local bar leaders as they lobby legislators
about issues affecting members of their bars,
their profession and the administration of justice.
Register now at
www.abanet.org/poladv/abadaysavethedate04
For more information, contact
Julie M. Strandlie, ABA Governmental Affairs Office,
202/662-1764 or
strandlj@staff.abanet.org
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SPONSOR LINKS
NCBP sincerely appreciates the support of
the following sponsors of the NCBP 2004 Midyear Meeting and
invites you to visit their Web sites by clicking on these links:
LexisNexis
www.lexisnexis.com
Martindale-Hubbell
www.martindale-hubbell.com
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Around San Antonio
by Raymond T. (Tom) Elligett Jr.
NCBP Communications Committee
San Antonio has grown up around one of the most
famous buildings in the world: the Alamo, where 189 defenders
fell in March 1836 fighting the vastly larger Mexican army led
by General Santa Anna. Instantly recognizable from the outside,
most will find a walk through the Alamo, reading the history of
the siege and battle, a stirring patriotic experience. Located
in the heart of San Antonio, the Alamo is open daily from 9 am
to 5:30 pm (10 am to 5:30 pm Sunday).
Downtown San Antonio has grown up around the Alamo, so to
appreciate its appearance at the time of the battle, venture out
to one of the surrounding missions, now managed by the National
Park Service. For more information, visit:
www.nps.gov/saan
Visitors can stroll the Riverwalk, enjoying shops, restaurants
and nightspots. Among the city's more renown watering holes is
the Buckhorn Saloon & Museum, which has operated since 1881.
More traditional museums include the San Antonio Museum of Art,
the McNay Art Museum, and the Witte Museum (Texas history and
natural science). For those looking for tourist attractions, the
San Antonio Zoo, Seaworld San Antonio and Six Flags Fiesta Texas
are within driving distance.
Beyond shopping along the riverfront, downtown offers the ten
acre River Center Mall, numerous individual merchants, and
Market Square, which has operated on its current site for over
100 years. Those looking for book bargains can visit the Friends
of the Library "Cellar" (open daily from 11 am to 3 pm - check
the location, as it has moved from the Hertzberg Circus Museum
to the Central Library while the former is under renovation).
There’s more information available on the San Antonio Convention
and Visitors Web site at,
www.sanantoniocvb.com
Cheryl Elligett contributed to this article.
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Preview of 2004
NCBP Midyear Meeting in San Antonio
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Following
the workshops, recipients of the Outstanding Law Day Awards, the Judge
Edward R. Finch Law Day Speech Awards and the Louis M. Brown Awards will
be honored at the NCBP / NABE /NCBF Joint Luncheon. In the afternoon,
instead of a "traditional" plenary, the Metro Bar Caucus will host
its first Beer and Bull Session, where metro bar officers and executives
can participate in roundtable discussions with topics based on its morning
workshop. State bar leaders will also have their own roundtable
discussions with designated topics. 
and
served on the bar's board of governors for several years. He is a member
of the board of directors and a fellow of the Wisconsin Law Foundation.
Sorenson has been a member of the American Bar Association since 1977 and
active in several of its sections. He is currently a member of the ABA
House of Delegates and a fellow of the American Bar Foundation. He is in
private practice in Ripon with the Sorenson Law Office. 
With the new year only a few weeks away,
I'm encouraging you to make a special resolution as bar leaders--plan to
attend the upcoming NCBP 2004 Midyear Meeting and ABA Day 2004. Join us in
San Antonio, February 5-7, for our midyear meeting. NCBP Program Committee
Chair Douglas Lang and the Program Committee have done an excellent job in
planning programming that will explore the relationship between the
organized bar and the judiciary. Wisconsin Supreme Court Chief Justice
Shirley S. Abrahamson, keynote speaker of the Friday plenary session, will
join a panel of judges and bar leaders and lead a thought-provoking
discussion about how justices and bar leaders can support one another as
well as judicial independence. After the plenary, workshops will discuss
judicial criticism, judicial sanction for improper conduct , how bars can
support solo and small firms and other topics of interest. 
Although
adding value is a concept often associated with business operations, it is
a critical goal of the National Conference of Bar Foundations. Our members
face increasing demands in an environment plagued with decreasing
resources. Our challenge is to find ways to provide a positive
value-for-value exchange for NCBF members. We are fortunate to work with
NCBP and NABE as we meet this challenge.