Attorneys looking to transition their career into private mediation or arbitration will still need to maintain their active State Bar licenses, according to a recent ruling by the California Court of Appeal. Getzels v. State Bar of California, 2025 No. B338089 (Cal. Ct. App., 2d Dist., Div. 4, June 26, 2025) reinforces California’s regulatory approach to keeping attorney-arbitrators and mediators under the full scope of State Bar oversight. The unanimous three-judge appellate panel’s decision settles significant constitutional questions while establishing clear boundaries for attorneys seeking flexible arrangements that combine retirement with specialized practice in private dispute resolution. The case makes it clear that inactive attorneys cannot serve as private dispute resolution professionals.

The case creates another problem. Inactive attorneys in good standing with the State Bar are prohibited from serving as private dispute resolution professionals unless they make their license active.  Non-attorneys, however, including disbarred attorneys, attorneys who resigned under discipline, and unbarred law school graduates can not only practice as neutrals.

The Facts

The underlying case concerns Morris S. Getzels, a 72-year-old attorney who retired from traditional legal practice in 2022 but wanted to continue his 25-year career in arbitration and mediation. Getzels hoped to transfer to inactive status to avoid the higher licensing fees (currently $515 annually for active members versus reduced fees for inactive status) and mandatory continuing legal education requirements while maintaining his ADR work.

California State Bar Rule 2.30 prevented this arrangement. The rule prohibits inactive licensees from “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.” This language effectively requires attorneys working as private arbitrators and mediators to maintain active licensure.

Getzels mounted a comprehensive constitutional challenge to Rule 2.30, raising two primary arguments that the Court of Appeal ultimately rejected: 1) a strict scrutiny argument, and 2) a rational basis challenge. Getzels first argued that Rule 2.30 violated the Equal Protection Clauses of both the federal and California Constitutions by treating inactive licensees differently from “everyone else in the entire world.” He claimed the rule impinged on a fundamental liberty interest in “freedom of contract,” specifically the “freedom of contract liberty rights of disputants and litigants to choose whomever they want to arbitrate or mediate their disputes.” The appellate court firmly rejected this argument, relying on established Supreme Court precedent, particularly West Coast Hotel Co. v. Parrish, 300 U.S. 379, 392 (1937), which held that “freedom of contract” is not a fundamental right under the Fourteenth Amendment. Consequently, the court applied rational basis review rather than the strict scrutiny standard Getzels sought.

Getzels alternatively argued that even under rational basis review, Rule 2.30 lacked any rational relationship to a legitimate state interest. The court disagreed, finding multiple rational justifications for the rule’s distinctions. The State Bar has a legitimate interest in maintaining a competent bar and ensuring professional conduct of all licensees who engage in law-related activities. The court also found it rational for the State Bar to conclude that inactive licensees working as arbitrators and mediators would burden the regulatory system because the State Bar would still receive complaints about their conduct and be required to investigate and respond to them, despite these attorneys only paying reduced fees.

The court also found that there was a rational basis for Rule 2.30’s disparate treatment of inactive attorney licensees and non-licensed neutrals, reasoning that non-licensed arbitrators and mediators fall outside the State Bar’s jurisdiction entirely and therefore do not place a burden on its regulatory system. The rule’s structure reflects the State Bar’s position that attorneys serving as private arbitrators and mediators remain closely connected to legal practice, generate ongoing regulatory oversight demands, and should therefore contribute to the full cost of that oversight.

Key Takeaways

Attorneys who wish to serve as private arbitrators or mediators must maintain active State Bar membership even after retiring from the practice of law. This means payment of annual active licensing fees, completion of mandatory continuing legal education requirements, and full regulatory oversight and disciplinary jurisdiction. The “inactive” status option with the State Bar is not available for private dispute resolution work.

When advising clients on dispute resolution clauses, attorneys should consider whether requiring active attorney-arbitrators provides additional oversight benefits worth potential cost increases. Parties will need to be more cognizant of the status of the mediator they choose: non-licensed mediators and arbitrators cannot be disciplined or regulated through the State Bar of California. Similarly, parties must determine if the mediators and arbitrators they consider were ever attorneys and if so, if their licenses are maintained.

For now, the Getzels case means inactive attorney cannot practice as an arbitrator, but a disbarred attorney, or an attorney who resigned from the bar, or a J.D. who never passed the bar, can. In the short term, there is likely to be some confusion among consumers of private dispute resolution when choosing their private dispute resolution professionals. For now, consumers are left to navigate a system where professional qualifications and regulatory oversight do not necessarily reflect who can actually serve as a private mediator or arbitrator.

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