Inactive Licensed Attorneys Cannot Serve As Mediators Or Arbitrators And That Does Not Violate Equal Protection.
Morris S. Getzels v. The State Bar of California, No. B338089 (2/4 pub. 6/27/25) (P. J. Zukin, Justice Mori, and Judge Daum (sitting by assignment), held that inactive licensees of the California State Bar cannot serve as mediators or arbitrators under State Bar Rule 2.30.
Getzels had challenged the constitutionality of the rule under the Equal Protection Clause of the state and federal constitutions. But the court held that under a rational basis analysis, the rule passed muster. Mediators and arbitrators perform legal or quasi-legal functions that can subject them to State Bar enforcement procedures and sanctions. Therefore, they should be active members of the Bar and dues paying members. The right of parties to contract with all mediators and arbitrators is not a fundamental constitutional right, and inactive licensees do not qualify as a suspect class subject to strict scrutiny.
We have discussed and commented about the case at greater length in the July 1, 2025 version of the Daily Journal. We point out that under the new Senate Bill 940, disbarred attorneys and an attorneys who flunked the bar exam could eventually become certified mediators and arbitrators, but inactive licensees with sterling reputations could not practice as mediators and arbitrators. Non-licensees can mediate and arbitrate. Since a goal, perhaps the goal, of State Bar enforcement procedures and SB 940 certification is to protect the consumer, it's an odd result. And there you have it.
Comment: Mediators and arbitrators, if you are active licensed members of the State Bar, pay your bar dues, keep up on MCLE requirements, and keep your active status. Or become non-licensed. But avoid inactive license status if you want to continue to mediate and arbitrate.