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For the third time in less than a year and a half, lawyers in Alameda, Contra Costa, San Mateo and Santa Clara counties are voting for a representative on the State Bar’s Board of Governors. And as in most Bar races in that time, including four earlier this year in Southern California, the issue is coming down to insider vs. outsider status: Do years of participation in local bar group activities give someone understanding of lawyers’ needs or does that blind someone to the realities of everyday practice? And in one candidate’s case, do years of conflict with the Bar’s Board of Governors, in the form of lawsuits and constant criticism, provide better or worse insight into whatever change, if any, might be necessary? Whichever view they buy, local lawyers who haven’t voted yet — ballots went out in the mail on Sept. 19 — have only until Tuesday to make a choice in the District Three race. Votes will be canvassed on Dec. 3-5. District Three voters are facing their third campaign in such a short time because two of the previous winners — Erica Yew and Marie Weiner — were appointed, respectively, to the Santa Clara County and San Mateo County benches after just a short time on the Bar board. Yew was replaced earlier this year by San Jose solo practitioner Carl Lindstrom Jr., who won election in a four-person race. Weiner’s replacement will be either Redwood City solo Vivian Kral, San Mateo solo Michael Gabriel, Emeryville solo Michael Schmier or Boalt Hall School of Law professor Stephen Barnett of Berkeley. Of the four, Kral, 48, who has served for years on various local bar groups, would be considered the insider candidate, while Barnett, 66, a vocal critic who has sued the Bar more than once, would be the ultimate outsider. Gabriel, 49, who has a plan for an online bulletin board system that would let attorneys bounce ideas off each other, and Schmier, 57, who has waged a long campaign to force courts to do away with depublication and no-citation rules, could be viewed as somewhere in the middle. Both are seeking this seat for the second time. While longtime Bar junkies, as some like to call themselves, have long dominated the Board of Governors, outsider candidates have won several recent races statewide. If the trend continues, Kral should be wary. Kral, however, takes offense at the Bar junkie label, calling it “pejorative” and wrongly indicative that experience with bar associations is a bad thing. “You are diminished for having participated at all,” she says. Kral, who got her law degree from Boalt in 1978 and has served as a judge pro tem for the State Bar Court, says she’s interested in making the State Bar more sensitive to the needs of solo practitioners and wants to ensure that the Bar’s prosecutors go after only attorneys who are in need of discipline. There are “technical traps for unwary attorneys,” she says. Kral, who practices family law and alternative dispute resolution, also would like the Bar to take a close look at dues, long a sore point with many lawyers who believe they are too high. “I know the dues are less now than they were 10 years ago,” she says, “but to any extent there is any fat in the budget — and I’m not saying there is — I want to see something happen about that. I know there are many disgruntled practitioners out there.” Count Professor Barnett among the disgruntled — seriously so. He has filed briefs supporting changes in the way mandatory continuing legal education is administered and the way the Bar’s discipline system is funded. He currently is challenging the Bar’s refusal to let active, out-of-state members vote in Bar races. “I’d been involved with democratizing the Bar’s processes by requiring them to open up their election procedures,” he says, “and as people started to use the new procedures, I felt almost obliged to do my part” by running for office. If elected, Barnett, a Harvard Law School graduate who has been practicing law in California since 1977, says he would work to bring dues down, make MCLE “less expensive and less patronizing” and completely separate the politically charged Conference of Delegates from the Bar. (The group, which is now independent, still is listed on the Bar’s dues statement for possible voluntary contributions.) Barnett, who teaches intellectual property law and torts, says he would work to improve the Bar, not sink it, but insists nonetheless that if the Bar can’t be streamlined and made more cost-effective, “it ought to be broken up.” Gabriel is less vehement about the Bar’s alleged faults, but he too believes it needs change, including a new way of looking at things. He’s pushing the creation of an Internet bulletin board that would let attorneys, especially solos, communicate with other lawyers on ideas and problems. “I’ve been in private practice for many years, and the only real fault against it is you don’t have anybody to bounce ideas off,” says Gabriel, a tax lawyer and graduate of Fullerton’s Western State University College of Law. “This is something that would benefit the Bar.” Gabriel also proudly points to his designation as a “California Republican of the Year” for espousing a proposal that Americans be allowed to use their retirement savings early to purchase homes. It’s an idea, he says, the State Bar could pursue through its political contacts. The problem with the current board members, he says, is that it’s “pretty much the same people, the same philosophy.” Gabriel also isn’t thrilled by a time-honored District Three practice, whereby the Board of Governors seat is normally rotated from one election to the next between the East Bay and the Peninsula, and the anointed candidate gets the automatic endorsement of all four county bar associations. “I just think it should be known they don’t interview every candidate,” Gabriel says. “They’re only saying, ‘Vote for this person because we know this person.’” Schmier gets a label from his fellow candidates, too — a one-issue man. A labor and employment law specialist and a graduate of the University of Michigan Law School, he and his brother, Kenneth, have worked indefatigably in recent years to stop state and federal appeal courts from issuing unpublished opinions that can’t be cited as precedent. It’s a pursuit that has led Michael Schmier into unsuccessful campaigns for the Bar, state attorney general and U.S. senator, and into failed suits against the California Supreme Court and the Ninth Circuit U.S. Court of Appeals, among others. He’s campaigning for the Bar again because he believes it’s one of the agencies that could have influence on the issue. “The Bar’s a major element in changing court rules all the time,” he says. “It has committees that every year review all kinds of rules, running the whole gamut of legal operations. It proposes drafts and many of those rules get rubber-stamped into new law.” Schmier also argues that the cost of MCLE ought to be reduced or incorporated into the annual Bar dues, and that the Bar’s discipline procedures should be reviewed because he feels that many of the “big ones” get away while solos and small-firm lawyers get hammered. The four candidates’ full campaign statements can be viewed on the State Bar’s Web site.

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