Is mediation the practice of law? Bar won't give a straight answer

In 2009, I wrote a column titled "Is mediation the practice of law?" It was based on a copy of a letter issued by the State Bar Office of the Chief Trial Counsel Enforcement, dated June 2, 2009, provided to me by the member addressee in a designated case. The letter said, "the State Bar does not consider mediation as the practice of law."

However, the bar appears to be proceeding in direct contravention of that letter. Examining its current application form and instructions for change of member status from active to inactive, requiring a declaration under penalty of perjury, it clearly states that, among other activities, an inactive member is precluded from working as a private mediator. I have been unable to obtain a straight answer from the bar as to why this has occurred, other than this is the way it has been since July 2007 pursuant to Rule 2.30. If that is so, why the issuance of the letter dated June 2, 2009?

In discussing this matter with the bar's Office of Professional Compliance (which relies on the outdated and out-of-jurisdiction case, Petition of Moody, 524 P.2d 1261 (Alaska 1974)), I was told that, "this is just the way it is." It was suggested that I contact the Office of the Chief Trial Counsel directly because the June 2, 2009, letter was issued by an assistant chief trial counsel who appears to no longer be with the office. In order to obtain an expeditious answer, I sent via fax a detailed letter on Jan. 14 and asked directly for clarification. As of Feb. 2, I have not received a reply.

The change of status application form instructions clearly set forth an overreaching list of activities that a member of the State Bar may not engage in without maintaining active membership, "including, but not limited to, working as a private arbitrator, mediator, referee, or other dispute resolution provider, a law clerk, paralegal, real estate broker or CPA."

The explanation provided is: "This is based on the presumption that these activities call upon a member to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law." The application also provides an exception for those "serving for a court or any other governmental agency as a referee, hearing officer, court commissioner, temporary judge, arbitrator, mediator or in another similar capacity," so long as the member "does not otherwise engage in any of the (prohibited) activities, or hold himself or herself out as being entitled to practice law."

Nothing is said about lay persons engaged in such activities as constituting the unlawful practice of law. However, among other things, it is made clear that, under Business and Professions Code Section 6125, "No person shall practice law in California unless the person is an active member of the State Bar." The obvious conclusion is that one is prejudiced by being a member of the State Bar, and deprived of the equal protection of the laws in California when engaged in the proscribed activities.

Some seem to think this is a result of the bar's alleged financial difficulties, and therefore is an attempt to stop the hemorrhage of lost revenue by preventing lawyers from electing inactive status.

It is indeed strange that the bar has to rely on the Moody case that appears to never have been tested, and which relies on facts clearly distinguishable from our question. There, a superior court law clerk challenged refusal of the bar association to enroll him as an inactive rather than active member. The Alaska supreme court held that the bar association's determination (that inactive membership was not appropriate) appeared reasonable and within its authority even though the clerk was prohibited by court rule from "engaging directly or indirectly in the practice of law," and his employment was not predicated on membership in the bar.

The Fourteenth Amendment guarantees that all persons in the United States shall enjoy the "equal protection of the laws." This means they cannot be discriminated against without good reason or a "rational basis" in a given situation. When a state grants a particular class of individuals (lay persons) the right to engage in an activity by not prohibiting it, yet denies other individuals (members of the bar) the same right as is the case here, there is no clear rational basis for a "legitimate state purpose." The current situation is a "suspect classification" because it discriminates between members of the bar and lay persons. There is no compelling interest to the law nor is the classification necessary to further the interest of the state. The only interest here appears to be the effort of the bar to protect its revenue source.

Perhaps the answer will present itself if the U.S. Supreme Court decides in favor of the petitioners in Friedrichs v. California Teachers Association, which is currently before it. While not the same from the facts and an issue point of view, it is an analogous case because of the opportunity for the court to further rearrange how we deal with the political landscape. In that case the petitioners are asking the court to change how unions that represent more than 9 million public employees in 23 states and the District of Columbia operate. Petitioners seek to extricate employees who elect not to become members, from nevertheless being union surcharged because of their employment at unionized job sites.

A favorable ruling for petitioners in Friedrichs could create a receptive atmosphere at the Supreme Court for an analogous challenge to the bar's overreaching position, should the court be presented with the issue.