ARBITRATORS AND MEDIATORS-INACTIVE MEMBERS OF THE STATE BAR

Getzels v. The State Bar of California, 112 Cal. App. 5th 388

Plaintiff Getzels retired from the practice of law. Because he had no intention to continue to practice law, he decided to become an inactive member of the State Bar but was precluded from doing so because he intended to continue to arbitrate and mediate disputes and State Bar Rule 2.30 barred inactive members of the Bar from either arbitrating or mediating. He sued the State Bar, asserting that Rule 2.30 denied him equal protection, given that nonmembers of the State Bar, even disbarred attorneys, were permitted to serve as arbitrators and mediators and he further argued that there was no rational basis for the rule. The State Bar’s demurrer was sustained and Getzels appealed. The Court of Appeal affirmed. The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. Courts apply strict scrutiny when a challenged statute or regulation involves a suspect class, such as one based upon race, or a fundamental right, such as the right to vote. ……But when a statute involves neither a suspect classification nor a fundamental right, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest…..It is traditionally applied in cases examining equal protection claims involving regulations governing professional licensing and conduct, including in the legal profession………Getzels argues there is no rational basis for prohibiting inactive licensees from acting as private arbitrators and mediators when “the rest of the world other than inactive licensees” are permitted to do so. We disagree……California has a legitimate interest in maintaining a competent bar and assuring the professional conduct of licensees. Rule 2.30’s distinction between licensees who engage in conduct considered closely related to the practice of law and those who distance themselves from such conduct bears a rational relationship to the goal of assuring the professional conduct of licensees. The State Bar could rationally conclude that an inactive licensee occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law would burden its regulatory system. The 2005 Staff Report noted that inactive licensees performing private arbitration and mediation services were likely to generate demand on the State Bar’s regulatory jurisdiction, even if their conduct did not constitute the practice of law per se. The State Bar could receive complaints about attorneys serving as arbitrators or mediators and would need to assess and respond to them. Getzels does not dispute that inactive licensees remain subject to the State Bar’s jurisdiction and to discipline for misconduct. It is rational to conclude that licensees who act as private arbitrators and mediators should be required to continue paying active annual licensee fees, whereas those who have distanced themselves from the practice of law should not. Furthermore, there is a rational basis for rule 2.30’s disparate treatment of inactive licensees compared to nonlicensees who may work as private arbitrators or mediators. Arbitrators and mediators who are not licensees are not subject to the State Bar’s jurisdiction. Nonlicensees therefore would not burden the State Bar’s regulatory system and cause the State Bar to incur costs.