Public Licensee Information and Required Reporting

Proposed Rule Changes Addressing Public Licensee Information and Required Reporting

December 13, 2019

Suzanne Grandt
Office of General Counsel
180 Howard Street
San Francisco, CA 94105
Email: Rule.2.2.Public.Comment@calbar.ca.gov

Dear Ms. Grandt:

The California Lawyers Association (CLA) submits these comments in response to the State Bar’s request for public comment on the proposed rule changes addressing public licensee information and required reporting.

We note that the State Bar specifically seeks public comment on its recommendation that “practice area information be made searchable in the interest of providing useful information to the public, but that the publication of practice area be accompanied by appropriate caveats, which state that the information has been provided by the licensee, but has not otherwise been verified by the State Bar, and that the State Bar cannot attest to any attorney’s performance in any particular area.” Our comments are focused on this issue.

CLA has several concerns about the proposed rule changes that would provide for the searchability of an attorney’s area of practice. The State Bar, at the Legislature’s request, has already developed a regulatory mechanism to help the public find attorneys. As the regulator of certified lawyer referral services (LRS), the State Bar sets and administers the regulatory framework specifically to help Californians find attorneys. As stated on its website, State Bar certified LRS programs afford the following benefits:

• Attorneys are insured.
• The certified lawyer referral service may be able to refer you to a qualified lawyer with experience in the legal issues you are facing.
• The certified lawyer referral service may be able to provide referrals outside of regular business hours.
• The certified lawyer referral service can give you information about other service programs.
• The certified lawyer referral service may be able to provide an attorney at a reduced rate. Specially, the certification rules require lawyer referral services to serve the community it operates in and improve the quality and affordability of legal services by creating programs to serve people of limited means.
• The lawyer referral service may be able to provide bilingual lawyers.

As part of its regulatory function, the State Bar also certifies attorneys as specialists in certain areas of practice under the Legal Specialization program. This information is searchable on the State Bar website. The current proposal would result in a situation where there are two different classes of searchable attorney practice areas, one that is regulated and verified and one that is not. This may result in additional confusion to the public, and could undermine the regulatory function of the Legal Specialization program.

From a regulatory perspective, we do not believe having area of practice posted or searchable on the State Bar website will assist members of the public in finding attorneys who are well suited to help them, especially since the information will not and cannot be verified without significant State Bar expense. The term “area of practice” is open-ended. We anticipate that many attorneys reporting this information will identify all areas in which they have practiced, without regard to the depth, breadth, or level of experience and expertise in the particular areas. While caveats and disclaimers could certainly be provided, this would create an environment where some information about licensees is accurate and correct, while other information may not be. The public should be able to rely on the accuracy of information posted on the State Bar website. Unverified listing of practice areas could actually result in a chilling effect by frustrating or causing harm to those members of the public who either come across or specifically go to the State Bar website as a means to find an attorney. Finally, we question the true impact of caveats and disclaimers on members of the public who see that the State Bar, as the regulator, has identified an attorney’s area of practice. We are concerned that caveats and disclaimers may be viewed as “boilerplate” language aimed at limiting liability, as opposed to a true warning that would impact in any meaningful way a member of the public’s reliance on the information that was found.

For these reasons, CLA does not support the inclusion of area of practice in the proposed rules or as information that would be searchable on the State Bar website.

We do see reasons to collect but not make public or searchable practice area information, all of which align with CLA’s Access to Justice and Diversity, Equity and Inclusion Initiatives. Reasons include addressing the scope and topics covered by the California Bar examination, and whether communities are adequately served by attorneys with certain practice area expertise. However, this information could easily be captured in ways that do not potentially mislead the public. For example, the information could be included as part of the State Bar’s annual demographic survey which has achieved a significant response rate. We encourage the State Bar to explore these other avenues.

Finally, as a separate and technical matter, CLA thinks the term “practice sector” as a mandatory report item is potentially confusing, and may be viewed as asking for area of practice. Our understanding is that the term is intended to refer to type of practice (e.g., government, private practice, not for profit, in-house counsel, etc.). We recommend that this be clarified, perhaps by using a different term.

We appreciate the opportunity to submit these comments.

Sincerely,

Emilio Varanini, President
California Lawyers Association