Mar. 23, 2023
State Bar virtual meetings: the good, the bad and the ugly
Several members of the Blue Ribbon Commission missed as many as a quarter of the meetings, and the absenteeism rate was highest among the faction that opposes exploring alternative pathways to licensure. More worrisome were the “quasi-present” participants.
Over the past two years I have been a regular attendee of the Blue Ribbon Commission on the Future of the Bar Exam (BRC) meetings. Like many businesses, the State Bar of California pivoted to online meetings via Zoom during the Covid Pandemic. Meeting virtually made it much more feasible for commissioners, presenters, staff and the public to participate. In addition, doing so created an opportunity to attend meetings for many marginalized populations, such as individuals with disabilities, low-income individuals, and people living in rural areas, who often do not have the ability to attend State Bar meetings in person. As Covid emergency orders expire, organizations throughout the country are working on plans for the future, including how and where meetings will be conducted. Many organizations and committees must comply with regulations and rules that are designed to ensure that the public has access and meetings are conducted in a transparent manner. While government entities work on modifications to the Brown Act and Bagley-Keene Act to allow virtual meetings in the future, it is the duty and responsibility of organizations, such as the State Bar of California, to design and implement their own virtual meeting protocols. The work of the BRC provides insight for many of the changes that are needed.
BRC Composition, Commissioner Meeting Participation and Voting:
The BRC was initially composed of 19 members. The process for being selected to serve on the BRC involved completing a detailed application and securing letters of reference. Members were selected from applicant pools representing various communities and/or subject matter expertise. The BRC was reduced to 18 members when Chief Justice Patricia Guerrero, who had been serving as the chair of the BRC, was elevated and the former CEO of the California Lawyers Association (CLA) left her position to take a new role out of state. These two individuals are BIPOC women. The judge's seat was not refilled and CLA chose to fill its vacancy with its president, Jeremy Evans, a white male in private practice. This was particularly disconcerting, as the two other CLA seats were also occupied by attorneys in private practice, the BRC lacked representation from the legal aid sector and more diverse CLA BRC commission applicants existed.
The time commitment involved was significant, and included a dozen commission meetings, as well as several sub-committee meetings. That said, applying was voluntary, the members of the BRC asked to be appointed and other individuals who sought to serve on the BRC were not selected by the communities/roles they represented. Having accepted their appointments, it was the duty of each commissioner to attend BRC meetings regularly, be prepared and engaged, and to keep an open mind when considering the tasks at hand. Sadly, some members of the BRC did not do this, and were often absent, sometimes in body, sometimes in mind.
Several members of the BRC missed as many as a quarter of the meetings, and the absenteeism rate was highest among the faction that opposes exploring alternative pathways to licensure. In terms of the quality of participation, some of these individuals failed to appear via their computer screens routinely, and chose instead to "call in" to the meeting. As mentioned previously, I attended almost all of the BRC meetings and there is at least one commissioner whom I never saw appear on the screen. When commission members only attend by phone, the public has no knowledge of: (1) when the commissioner joined the meeting, (2) what other tasks the person was doing during the meeting and (3) what information their votes were based on. Below are descriptions of two pivotal BRC meetings and the impact of not having virtual meeting protocols:
Oct. 13, 2022: At the time of roll call both Commissioner Alex Chan and Commissioner Esther Lin were not present, yet the meeting minutes indicate no absences. Some commissioners opposed to exploring alternative pathways to licensure appeared and disappeared from their screens throughout the meeting. A key discussion topic involved timing. State Bar Executive Director Leah Wilson explained that it would take five to seven years to design, test and evaluate revisions to the California Bar Exam. Several commissioners expressed concern about waiting until after this was done to explore alternative pathways, and that they would like to see both happen in a parallel time frame. The anti-exploration faction insisted that the exam revision must be done first and despite the many alternative motions presented, the anti-exploration faction refused to support any type of motion that would allow for alternative pathway exploration, much to the chagrin on the BRC Chair (Joshua Perttula) and others who were looking for consensus. Commissioner Evans, one of the lead anti-exploration commissioners went further, and attempted to restrict the State Bar from simply exploring alternative methods of licensure for years by introducing a motion that would have mandated that alternative methods of licensure could not be explored until after the California Bar Exam is revised, administered and evaluated. Allowing commissioners who were not present when the meeting started, as well as those who missed significant portions of the meeting to vote determined the outcome of the motions to explore alternative pathways to licensure.
Nov. 3, 2022: The meeting minutes state that 16 members of the BRC were in attendance, and that Commissioners David Boyd and Commissioner Jackie Gardina were not present. Three motions were considered that day, none of which involved alternative pathways to licensure. Commissioner AmyWilliams was absent for the vote on all three motions, Commissioner Charles Duggan was absent for two of the votes. While it is understandable that a commissioner might miss one vote during a three to four hour meeting, to miss multiple votes raises questions as to how "present" the commissioner actually was during the meeting.
Commissioner Ryan Harrison, one of the members of the BRC most opposed to exploring alternative pathways to licensure had one of the highest rates of absenteeism. Notwithstanding this, Commissioner Harrison felt that he was in a position to ascertain that "...most of the members of the BRC are in stark opposition to an alternative pathway to licensure." As noted in the report, the vote not to explore alternative pathways to licensure failed by one single vote. Commissioner Harrison in his dissent (which he saw fit to publish in the Daily Journal before the BRC even met to discuss the draft report) concluded that:
"....the record of formal BRC votes may not accurately reflect the overall opinion(s) of commission members."
While Commissioner Harrison and I do not see eye to eye with regards to whether alternatives to the expensive (bar exam fees and prep programs cost on average over $6,000 per attempt, not including "day of expenses" and living costs during the six month period examines prepare for, take and await the results of the bar exam), multi-day, closed book bar exam, should be explored, we do seem to agree that the voting record is not an accurate depiction of the overall opinion of BRC commission members. The vote not to explore alternative pathways to licensure was eight "yes," nine "no." According to the minutes of the BRC's Nov. 3, 2022 meeting, Chair Perttulla (when the current Chief Justice stepped down, Joshua Perttula became the Chair of the BRC) did not vote. However, during the BRC's discussions Chair Perttula expressed support for exploring alternative pathways several times. In addition, there is good reason to believe that at least one commissioner who voted against exploration now feels differently based on:
The dissent of Commissioner Chan, in which he appears now to support exploration of an alternative pathway to licensure from 2023-2026;
The group of commissioners who acknowledged they were "on the fence" when they voted not to explore alternative pathways to licensure;
BRC "politics" and pressure from the anti-exploration faction;
The impact of the "non-exam" nomenclature, which as noted in the report and in a dissent was in error and potentially misleading.
To be clear, a few members of the BRC who voted against exploring alternative pathways to licensure were not members of the anti-exploration faction. As noted previously, some of these individuals voiced hesitation and that they felt conflicted. It is difficult to determine how much impact the anti-exploration faction had on their votes. However, what is clear is that contrary to Commissioner Harrison's claim, most of the members of the BRC were not in stark opposition to exploring attentive pathways to licensure.
Unfortunately, the undue influence of the anti-exploration faction of the BRC stretched beyond the BRC itself. The leaders of this group claim to have the support of several bar associations, yet they fail to acknowledge that many of these groups relied on the misleading information and false narratives these same commissioners provided. These individuals also attempted to bias the entire legal community and the public by publishing Op Eds, submitting public comment letters opposing exploration of alternative pathways to licensure, and by limiting the information contained in the BRC report. Most of the members of the BRC who voted against exploring alternative pathways to licensure are attorneys in private practice and are influential members of the various bar associations that submitted public comments opposing alternative pathways to licensure. They share similar views with others who have voiced opposition to alternative pathways of licensure publicly, fearing loss of income as attorneys in private practice and as owners of bar exam review programs. These individuals appear to be "protecting their turf" and encouraging a form of hazing in our profession that is unseemly, unnecessary and outdated.
Other occupations that require licensure, such as the medical profession, have over the years revised their methodology. It is time for the law to do so as well. Ironically, in 2020 new law pursuant to SB 798 took effect that increased the post-graduate training requirement for all physicians who wish to obtain a California license from one (1) year to at least three (3) years of post-graduate training, and that while in training they must obtain a postgraduate training license, known as a PTL. After three years of training, residents and fellows may then apply for a full and unrestricted California medical license. Coupled with the three year training period are new training requirements.
The experience of the BRC is a prime example of why the California State Bar must immediately establish virtual meeting protocols. The fact is that many of the anti-exploration BRC members attended meetings only via phone, leaving the public literally "in the dark" as to when these individuals joined the meeting, what presentations they did and did not hear (Note: they were unable to see any of the visual presentations because they choose to attend by phone), and what other tasks were being done during the meeting. Several members of the anti-exploration faction never expressed concerns during presentations or discussions about alternative pathways, yet they consistently voted against exploration. The only time they gave any indication they were present was during roll call voting, and some of these individuals were delayed in doing so, giving the appearance they had been prompted by others, outside of the purview of the public. Others called in from loud, busy public venues. Based on their lack of engagement, it appears they joined the BRC to simply block consideration of anything except licensure exclusively via a written bar exam.
As we move forward and Covid related emergency orders expire, it is clear that some of the ways we do business now have become part of our "new normal." Virtual meetings are likely to remain a large part of how the State Bar's business is conducted, and the State Bar needs protocols to ensure public trust. Ironically, many of the members of the anti-exploration faction argued at length during commission meetings and in their dissents to the BRC Report that it was imperative that California's licensure method(s) protect the public and that the public must feel that it can trust the State Bar when it comes to attorney licensure. These same individuals exhibited behavior during BRC meetings that failed to make many members of the public feel that they were adhering to the BRC's guiding principles, fully engaged in the meetings, following the State's meeting rules, acting in a civil manner and/or could be trusted.
As for exploring alternative pathways to licensure, the State Bar Board of Trustees in 2022 thoughtfully and wisely voted to recommend that the California Supreme Court extend the Provisionally Licensed Lawyers (PLL) programs, and use the 2020 PLLs as participants in a pilot alternative pathway to licensure. This action is in alignment with the California Access to Justice Commission's Oct. 6, 2022 letter to the BRC supporting exploration of an alternative pathway to licensure. Given the short timeline to make a decision, it is understandable that the California Supreme Court did not address the PLL Alternative Pathway to Licensure pilot in its Dec. 30, 2022 Order. The Board's prior recommendation should be reinforced now, with a clear message to the California Supreme Court that it is time to move beyond an antiquated "one size fits all" exam only method of licensure that impacts BIPOC, disabled and non-traditional law students disproportionately. The Board of Trustees should use this opportunity to take action to support alternative methods of licensure that will ensure minimum competency, protect the public, diversify the profession and help address the justice gap.