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For many retired judges, one of the perks of leaving the bench is to make big bucks conducting private arbitration and mediation — all the while remaining inactive members of the State Bar of California. But in a move that has angered some judges, the State Bar has proposed enforcing a longstanding policy that requires anyone who makes a living doing alternative dispute resolution to retain active status. That would translate to higher annual fees, 25 hours of legal education classes every three years, and potential exposure to malpractice suits — hurdles that many ex-judges never expected to face again. James Mize, president of the California Judges Association, called the proposal a “significant issue” and said several retired judges have threatened to give up their licenses altogether rather than resume active status for jobs that even the State Bar admits don’t constitute the practice of law. (A law license isn’t necessary to practice ADR.) Mize, a superior court judge in Sacramento County, said he has appointed three retired jurists to a joint bench/Bar committee to express the judges’ concerns and see if there’s a way to resolve the matter. “All of the parties aren’t going to get their needs met,” Mize said, “but, hopefully, some compromise can come about.” The idea, driven by State Bar staff, has been broached with the organization’s Board of Governors in recent months, and will face a full discussion during the group’s next meeting, Jan. 21 in Newport Beach. State Bar executives protest that they’re only planning to put teeth in a policy that’s been in place for more than 50 years. While on the bench, judges are not considered members of the bar, but once they depart they must declare active or inactive status. The organization’s rules and regulations, enacted by the state Legislature, prohibit inactive members from “occupying a position wherein he or she is called upon to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law.” Starr Babcock, the special assistant to State Bar Executive Director Judy Johnson, said that arbitrators and mediators — who resolve disputes as part of their jobs — fall squarely within that description. “We are not saying that mediation and arbitration is the practice of law,” he added. “All we are saying is that we have defined certain activities that are not consistent with inactive practice.” Under the plan, retired judges would enjoy a grace period before having to declare active status, but mediators and arbitrators who did not go active could face suspension. If approved, the rules would be enforced beginning next year. JAMS, one of the largest ADR organizations with about 90 retired California judges on its staff, is remaining neutral in the dispute. “We feel it is more properly an issue between the retired judges and the California Judges Association and the State Bar,” said Vice President and General Counsel John “Jay” Welsh. Currently, the Irvine, Calif.-based company doesn’t require retired judges to be active, but does force lawyers who do mediation and arbitration to retain active status. “We say if you call yourself a lawyer, be a lawyer,” Welsh said. Some critics have accused the State Bar of engaging in a money grab from easy prey. “My mother told me that when someone says, ‘It’s not the money, it’s the principle of the thing,’ it is virtually always about the money,” San Rafael, Calif., lawyer Peter Axelrod said in a letter to the California Bar Journal, the State Bar’s official publication. Babcock acknowledges that the organization is acting in part because the number of lawyers who have gone inactive has risen from about 13 percent to more than 21 percent in the past 15 years. “Anytime you have that increase,” he said, “it’s a hit on the general fund. So sure we’re going to look at it.” But Babcock insists that filling the coffers isn’t the Bar’s main goal. The proposal is aimed more at ensuring compliance with the State Bar’s statutory obligations, he said, and there isn’t even a good idea how much revenue could be generated. “We really don’t know.” But the amount could be substantial, considering that inactive members, including retired judges, pay only $50 in fees each year, compared with the $390 charged active lawyers. There are 996 retired judges and justices in California, said Marcia Taylor, director of the appellate and trial court judicial services division of the state’s Administrative Office of the Courts. The agency does not identify how many judges practice ADR. Taylor noted that of the nearly 1,000 retired jurists, at least 290 of them regularly sit on the bench by court assignment. By law, she said, they cannot conduct mediation or arbitration. Critics have asked why lawyers and retired judges should face requirements that non-lawyer mediators and arbitrators don’t. Others question whether simply doing law-related work demands active status. “My paralegal certainly participates in law-related work everyday,” Steven Kane, of La Mesa’s Anderson & Kriger, said in a letter to the Bar Journal. “But no one is suggesting that she must be an active member of the Bar to do her job.” Elizabeth Baron, a retired justice from Los Angeles’ 2nd District Court of Appeal — and one of the three jurists appointed by Mize to discuss the issue — called for an amendment to the State Bar’s rules and regulations to provide inactive status for retired judges who work in ADR. “Such an amendment,” she wrote in The Bench, the official journal of the CJA, “would be in keeping with the law’s recognition that privately retained arbitrators and mediators are engaged in quasi-judicial proceedings.” Not everyone opposes the proposal. Retired San Francisco Superior Court Judge William Cahill, who’s now with JAMS, said the State Bar “might have a point.” “If I’m an arbitrator, and I’m deciding things, and I’m a member of the Bar,” he said, “I should be active.” In fact, Cahill — who emphasized that he was speaking for himself and not for JAMS — has continued to remain on active status during his four years as an arbitrator. He’s paid the full $390 a year and completed MCLE. “There’s no downside,” he said. “It hasn’t hurt me.” Even CJA President Mize concedes that the State Bar regulations seem clear that ADR providers should be active members of the Bar. “However,” he added, “that doesn’t necessarily mean there couldn’t be another status for retired judges who are simply taking a judicial role in their efforts.” Babcock said State Bar officials hope to convince retired judges that active status is a good thing for the public in that it could help ensure better arbitrators through MCLE and stricter oversight. If nothing else, said Ira Spiro, who does mediation at Los Angeles’ Spiro, Moss, Barness, Harrison & Barge, the extra money would go toward a good purpose. “Most of that money goes toward funding the lawyer discipline system, which is something all lawyers are subject to and should be concerned about,” he said. “It seems like a very, very, very small price to pay — $390 a year — for that.”

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