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Archive for the ‘Your friendly state bar.’ Category

Suspending for a heartbeat my natural skepticism when it comes to Arizona’s legal establishment, especially its ‘friendly state bar,’ the following announcement might be good news. But I’m not holding my breath.

By administrative order of Arizona’s highest court, a “Task Force on the Review and Governance of the State Bar of Arizona” Review the State Bar’s Role and Governance” was created July 29, 2014.

j0341699The purpose of the Task Force is to “examine the Rules of the Supreme Court on the mission and governance structure” and to recommend changes — albeit “if needed,” including but not limited to the following:

“a) Does the mission of the State Bar need to be clarified or modified?

b) Is the governance structure adequate to efficiently and effectively govern and carry out the duties of the Board?

c) Are Supreme Court Rules in the following areas related to Board structure and governance duties adequate to best serve the Board’s primary mission of protecting the public?

i. Qualifications for membership on the Board of Governors;

ii. Appointment, election and removal of members of the Board of Governors;

iii. Term limits for members of the Board of Governors;

iv. Election process;

v. Board of Governors size and composition; and

vi. State Bar leadership structure and composition.”

People 3050I’ll be monitoring the Task Force’s work, particularly whether the court does anything to arrest the serial reelection of governors (some, for example, have been on the Board for almost 20 years), see “Elvis never leaves the building without term limits;” or to rein in the unwieldy size and structure of the 30-member Board, e.g. see “Inside the tent: state bars and management by rugby scrum;” or to rethink the Bar’s exclusive consumer-protection mission, see “That time of year again . . . rendering to Caesar his annual bar dues.”

I have zero expectations on the latter as the court’s order makes abundantly clear the mission and governance review means “to ensure that they continue to best serve the public interest.” After all, the court adds: “The integrated State Bar is intended to regulate the legal profession to protect the public” [presumptively -- from its lawyers].

But don’t misunderstand. Serving the public interest is critically important. Problem is, there are hordes of Arizona lawyers still clinging to the long discarded but quaint notion that like a trade association, the Arizona Bar also expressly serves members’ interests.

So perhaps a salutary outcome of the Task Force’s work will be to finally disabuse them of that delusion. For more about “the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role,” see David Cameron Carr’s insightful discussion of the California State Bar’s recent governance changes at “The Great Public Protection Perpetual Motion Machine.”

So thanks to its public protection marching orders, deliberations won’t start with a blank slate. Findings and recommendations are due September 1, 2015.

Everything’s dandy.

http://upload.wikimedia.org/wikipedia/commons/thumb/1/12/Henri_Brispot_Gourmand.jpg/309px-Henri_Brispot_Gourmand.jpg

The court’s order may have also caught some of the true believing kool-aid drinkers on the Board of Governors by surprise, particularly if it was sprung on them during the Board’s just-concluded annual retreat boondoggle.

Rich Life 20Many governors, after all, like a bloated bureaucratic “full service, first class” bar. They savor their perquisite-filled status quo and gubernatorial privileges, including Bar-provided free continuing legal education. So despite the increasing restiveness of members, they think everything’s dandy the way it is.

But dandy or not, the court wants the review because of changes to the “legal services environment” along with growth of Bar membership and “demands placed on the State Bar.” I can only imagine what the last one means — but it sounds tailor-made to justify more fee increases.

Computer Hackers 22And coincidentally, there’s also another Arizona Supreme Court 13-member committee looking at “whether Arizona ethical and other regulatory rules should be amended because of the changing nature of legal practice in a technologically enabled and connected workplace and the growing trend toward multistate and international law practice.”

You’d almost think there’s something in the firewater hereabout, given the spate of rule reviews underway. But I think this other arose due to changes proposed by the American Bar Association’s Commission on Ethics 20/20. Indeed, other state bars have begun similar reviews. A copy of the June 17, 2014 administrative order is available here. And of course, I’ll be posting about that committee, too.

The bad news.

http://upload.wikimedia.org/wikipedia/commons/thumb/6/69/Ansdell_Richard_The_Gamekeeper.jpg/365px-Ansdell_Richard_The_Gamekeeper.jpgBut as for that task force on mission and governance, don’t expect meaningful reforms. Thirty-six percent of the task force is composed of former members of the Bar’s board of governors. Indeed, four of these five former governors are also past state bar presidents, including the immediate past president. He was instrumental in ramrodding through an unnecessary 13% dues increase to preserve business as usual. Moreover, the “consultant” to the Task Force is the Bar’s current CEO. A mission and governance review with such guiding lights is like hunting with the game warden.

Still, I guess it’s not quite as bad as the composition of the committee reviewing the Michigan State Bar’s purported use of dues for ideological activities. In Michigan, as one critic pointed out in February, “the task force is stacked with current and former state bar officials.”

At least this Task Force has more diversity. It includes a former state university president, a presiding judge, a libertarian from the Institute for Justice and even a former public utility lobbyist. And with the Bar’s prosecutorial mindset, no surprise it also includes a former state attorney general and a couple of former cops.

But while the Task Force appears to have seemingly covered the politically correct diversity dimensions, e.g., race, ethnicity, gender, sexual orientation, age, etc., it’s missed a big one: there are no dissidents. Who will voice the saeva indignatio?

Yet understandably, in light of the Bar’s disposition toward group-think, why invite oppositionists? No matter, then, what Christopher Hitchens brilliantly wrote in Letters to a Young Contrarian that “. . . in life we make progress by conflict and in mental life by argument and disputation.” Of all people, you’d think lawyers would know that.

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Photo Credits: Day 121, at Flickr Creative Commons attribution share and share alike license by Bastian; The Good Shepherd, by Waiting For The Word at Flickr Creative Commons-license requiring attribution; Henri Brispot Gourmand.jpg at Wikipedia Commons, public domain; Gamekeeper by Richard Ansdell at Wikimedia Commons, public domain.

 

 

 

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“Are you a member or happy?”

Paraphrasing that other “Mo” — the one with an “e,” the State of Bar of Arizona is still asking. How happy are members with the Bar’s programs and services?

Although I already took the meaningless member survey, Monday morning I got another email reminding me to complete it. This is the third reminder — but who’s counting? The survey period ends this Friday.

 

achievements,business,flags,waving,metaphors,mountaintops,peaks,people,success,concepts

Doubtless the Bar’s trying to gin up something close to a representative response rate so its leaders can afterward claim victory just like they did three years ago.

Never mind the biased questions with their implicit assumptions or the forced choices from preselected answers. The results are preordained. But then I already I discussed all this last week at “Another ‘poppycock’ survey from the State Bar of Arizona.” At least the Bar’s not planning to survey us so they can later sell us the results.

Defensively speaking.

After last week’s post, I got an email from State Bar of Arizona Chief Communications Officer Rick DeBruhl. Understandably defensive, he wanted to explain a few things. With his consent, I’m posting his clarifications verbatim below.

_____________________________________________________________

“A couple thoughts on your blog:

“Our survey was designed with input by Bruce Merrill. Formerly with ASU, he is one of the premiere survey experts in the country. Surveys are inherently imperfect. Experts like Merrill design them in such a way as to work around our human idiosyncrasies. I’ve never taken a survey that I considered perfect, and I wouldn’t put ours in that category. Using consultants such as Merrill simply allow us to step beyond the amateur ranks to get reasonably valid information.

“You mentioned the fact that 80% of the bar’s membership did not respond in 2011. Survey experts will tell you that a 20% response rate is phenomenal. In addition, we made sure to check that the final numbers were demographically similar to our membership. That gives our survey validity.

 “Questions such as the “printed directory or a more robust online member search tool” were designed to give us guidance. We know from previous surveys that members overwhelmingly use and value the directory. We’ve heard that the current online search tool doesn’t go far enough. Would people be satisfied if we dumped the print directory for our existing search tool? Possibly not. What we’re ultimately trying to determine is whether they like the printed version because they want a book, or because they don’t have a better option.

“As for the answers on the “most serious problems” question, we actually got them from another state’s survey. We’re trying to build not just Arizona data but national trends as well. We looked them over carefully before deciding to include them. Any time you create a list, it has the potential to create bias to those answers. And yet survey experts say that respondents need lists to be reminded of the options.

“As for why we use SurveyMonkey, the answer is simple. It is the highest quality for the lowest cost. Of course there are other ways to survey members with greater anonymity. However, they cost significantly more money. Merrill feels we can achieve the same results with lower cost using this method. One other option would be a random sampling. Experts say we could get statistically valid results with just hundreds of responses. Perhaps, but we felt that if we were going to talk about the results of the member survey that all members should have the ability to give answers.

“Incidentally, we had a technical problem on the first day of the survey that prevented some people from submitting. As a result, our consultant decided that our best option was to remove the block that prevents a second survey from the same computer. The consultant feels that the number of people submitting two will be significantly small so that it won’t likely affect overall trends. We do have the ability to run a check on the number of repeat IP addresses which will let us know whether that number was significant. I’m sure if we had unlimited resources, we could no doubt determine the identity of each IP address, but that’s simply not in our realm. Incidentally, we don’t use the SurveyMonkey invitation system.

“We’d love it to be shorter, but we’ve done our best to chop it down. Because of the skip logic built into the survey, no one actually answers every question.

“The bottom line is that we understand that surveys are imperfect. We look for trends and directions and feel that gives us guidance as an organization.

“As always, let me know if you have questions or thoughts.”

__________________________________________________________________________________

Dollars to donuts.

Cartoon Characters 57 I said last week I wasn’t a survey expert. But dollars to donuts, it’s like asking 10 lawyers about anything. If you get 10 survey experts in one room — you’ll get 10 different opinions.

Survey design is as much art as science. So what’s a good response rate? Depends who’s asking. And it depends on how they ask the question. Also see AAPOR | Response Rate – An Overview.

But I’m glad at least that Rick DeBruhl conceded more than once that the Bar survey was “imperfect” — because it is. That was the crux of my post.

There’s a reason some 80% of lawyers don’t bother answering these surveys. They’ve figured out what a medical historian once said about something else, “The experience of the ignorant has routed the wisdom of the learned.”

Too bad my point about the Bar’s expensive printed directory got lost. The survey’s either/or question about the directory was a leading question. It was biased toward a choice preference for a more robust online member search tool.”

Not long ago, the Arizona Bar spent well over six figures supposedly improving and updating its website and its online member search tool. And now it appears some Bar executive is itching to spend even more money on what’s become a bloated website and online member search tool. Meantime regardless of the Bar’s claims at being eco-friendly — it’s just not yet because the Bar continues to print member directories and kill trees.

As for the survey having been designed “with input by Bruce Merrill” — well, that was a point I already footnoted last week. Still with an expert “like Merrill” on board, you have to ask why the Bar needed to crib stuff from other state bar surveys?

Satisfied?

Finally, as a learned colleague pointed out to me when I showed her Rick DeBruhl’s response, his email didn’t address the matter of his boss’s oversimplification of the Bar’s percentage of so-called ‘satisfied customers.’ This was last February 2013 when AZ Bar CEO John Phelps who’s also a lawyer addressed the state legislature’s house judiciary committee.

At about 27:33 on the tape and transcript, he omits the qualifier “somewhat” and asserts instead that “75% of the lawyers polled. . . were satisfied and 25% were not satisfied.”

Does such shorthand, she opined, potentially rise to an ethical rules violation under ER 7.1, i.e., that “a lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication”? Or as she also speculated, was it a possible violation of ER 8.4 (c) concerning “misleading” statements? The Bar’s communications chief doesn’t explain.

 

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Businesswoman with arms crossed uid“Overall, how satisfied are you with your State Bar membership?”

That’s the first of 40 questions asked by the State Bar of Arizona in the 2014 version of its triennial Member Survey. A week ago Wednesday, the Bar sent a blast email asking“its members to evaluate our member services and your opinions on key issues facing the Arizona legal profession.” If ‘what’s past is prologue,’ Bar executives and their collaborators will again use the results to spin member satisfaction like they did in 2011.

In fact, as recently as February 2013, the Bar’s CEO was citing supposed member satisfaction to stymie a half-baked Arizona legislative effort to make Bar membership voluntary.1

Poppycock.

Nixon would've loved "new" media as scandal-plagued pol Mark Sanford's the latest to feel Fox News' love.The Bar’s email went on to state “Your participation in this survey will help the State Bar to better provide the services and information that meet your needs and interests.” Well as Tricky Dicky used to say, “that’s just plain poppycock.”

Damning case in point, of the 40 questions posed — not a single one pertained to member interests in either the cost of bar membership or the Bar’s lack of transparency. These were two of the biggest criticisms lodged against the dues-raising Arizona bar this year. And they were hot-button concerns raised by candidates during the just concluded Bar board of governors elections. So much for professing to sincerely inquire about members’ “needs and interests.”

Indeed, contrary to the specious claim that the Bar will use the survey “to better provide the services and information that meet your needs,” the real intent is pretextual. As it has before, the Arizona Bar will use the data as cover — as both sword and shield to fend off critics who contend the association is bloated, out-of-touch, and high-cost.

Happy Campers.

Thomas Hiram Holding outside his camping tent; Wikipedia, public domain

Thomas Holding, Wikipedia/public domain

Three years ago, 51% of all respondents reported only being “Somewhat Satisfied” with the Bar. Somewhat satisfied? As in 2011, that’s again one of the preselected choices. But what does it mean? Try telling your kid he’s “somewhat” smart or your girlfriend she’s “somewhat” pretty or your spouse you’re “somewhat satisfied” with your relationship. Let me know how well that works.

Woman s face uid 14And an additional 23% said they were either “Somewhat Dissatisfied” or “Very Dissatisfied” with the Bar. But forget all that. The Bar’s spinmeister magazine, “Arizona Attorney,” nonetheless headlined the 2011 survey results with the misleadingly titled, High Satisfaction, Room for Growth” and bragged about what supposed ‘happy campers’ Arizona lawyers were. And never mind that fully 80% of the Bar’s members were too indifferent or too busy to respond to the survey or that the Bar failed to follow-up with those 17,165 nonrespondents.2

N.Q.R.  Factor.

Now I don’t pretend to be an expert on surveys.3 But I do know this. Surveys should be concise. Questions are supposed to be clearly worded. And while it matters who’s paying for the survey, they’re also supposed to be neutral. What’s more, there’s as much art as science involved.

So I have my doubts about the Bar’s Member Survey. Besides the survey having too many questions requiring way too much work to fill out, there’s an N.Q.R.4 factor again emanating off this year’s survey.

Several questions appeared biased either by the implicit assumptions they make or by forcing respondents to make choices when they’d rather not. No wonder it feels like the deck is stacked.

When you ask, for example, “how satisfied” you are with your membership or “how valuable to you” bar services are, you know there’s something not quite right. Both questions are biased because of the implicit assumptions concerning satisfaction and valuable they make.5 The“words you use in the questions can affect respondents’ reaction and choices.”

Or take the leading question about whether or not there’s a preference for “a printed Member Directory or a more robust online member search tool?” [emphasis added]

teacherOr how about the barely hidden Bar-agenda questions? For instance, there’s the forced choice made by Question 6, which in order to continue with the rest of the survey, requires respondents to pick at least one of 17 preselected positive choices under, “Which of the following are the features or uses for the [printed Membership] directory that you find to be the most valuable?” For those of us who think printed directories are a waste of money and of no value in a digital age, too bad. You can’t skip the question or choose ‘no opinion.’

And talk about agenda-driven responses like those in the survey category, “Professional Barriers.” Question 9 asks, “What do you believe are the three most serious problems faced by the legal profession today?” and Question 10 queries, “Please list the three most important issues that you would like to see the State Bar concentrate its efforts on in the next few years.”

For multiple-choice answers, the Bar provides its predetermined long list of alleged lawyer concerns like “lawyer advertising,” “diversity,” “lack of appropriate judicial system funding” and “threat to judicial independence” [even in a merit selection state where for the past 40 years 99.9% of Arizona judges are retained]. Who came up with those personal agenda-driven responses? But don’t look for choices about improving fiscal stewardship or treating members like clients or cutting costs or increasing bar transparency or heightening member due process.

And conveniently disingenuous about lawyer apprehension if not their outright paranoia when dealing with the almighty keeper of their meal-ticket-license — the survey asks intrusive demographic questions under the category, “About You and Your Work.” Like lawyers are going to trust privacy and confidentiality assurances about respondent anonymity when questions specifically ask for county of primary practice; year of admission generally, and in Arizona; age; gender; areas of practice; number of firm lawyers; and optionally, race and ethnicity. Why not just ask for names?

SurveyMonkey.

Computer Monkeys by Chris Lott at Flickr Creative Commons Attribution

Computer Monkeys by Chris Lott/Flickr

Not that respondents shouldn’t be concerned about survey integrity and anonymity. Where surveys contain “sensitive or potentially identifying information,” the U.S. Navy, for example, strongly recommends against commercial providers like SurveyMonkey that do not conform to its security regulations. “Since the data will be stored on commercial servers there is increased risk of harm or embarrassment if the data are somehow compromised.” As it happens, SurveyMonkey is the commercial survey provider used by the Bar.

On its website, SurveyMonkey explains that anonymity is up to the survey creator and not its job. While the survey creator has options to collect responses anonymously, SurveyMonkey explains, “All collection methods permit the tracking of respondent IP addresses. Anyone using the Email Invitation collector could potentially track an email address on the response.”

And according to a SurveyMonkey Review posted on the business software review site, TrustRadius, email links to its surveys allegedly allow individuals to “complete the survey more than once if they access the link through 2 different computers.” I don’t know about all that.

But I do know that after completing my survey, I could still access the same email link and begin completing another survey — not that I had any interest in wasting my time twice.

So is it one anonymous survey per ‘customer’? Or is that just more poppycock? In truth, I don’t care.

__________________________________________________________________________________________

[1] See Arizona House Judiciary Committee videotaped hearing Arizona Supreme Court’s control over state bar debated, contested . . .” at http://www.youtube.com/watch?v=xotdkMf61Ic, February 14, 2013 and remarks by Arizona Bar CEO John Phelps at 27:14 conveniently omitting the faint praise qualifier “somewhat” and asserting instead that “75% of the lawyers polled. . . were satisfied and 25% were not satisfied.”

[2] See Ten Reasons Why Surveys Fail by Dr. David Futrell, Quality Progress Magazine, April 1994, noting, “Failure to follow up with the nonrespondents can yield grossly misleading data. In general, people who respond to a survey will be more extreme in terms of what is being measured than the nonrespondents.”

[3] To be fair, the Bar hired an expert, noted local researcher Bruce Merrill, Ph.D., to assist its 2011 survey. Dr. Merrill once ran a golf hole Ad-in-the-Hole Research Study to evaluate “Name/Brand Awareness,” “Ad Recall” and whether golf hole ads are “Bothersome to golfers.” Golf hole advertising’s a dumb idea — but no worse than urinal advertising.

[4] NQR  means Not Quite Right. I was first introduced to the acronym by a friend and former F-18 fighter pilot.

[5] Compare the Bar’s “how satisfied” question with the example borrowed from Sterngold, Warland and Herrmann (1994) by Professors Hershey Friedman, Ph.D. and Taiwo Amoo, Ph.D. in Ranking the Rating Scales, published in the Journal of Marketing Management, Vol. 9:3, Winter 1999, 114-123. Referring to an earlier study, the professors write “that a question like “How concerned are you about…?” causes a bias in the direction of concern because it assumes that subjects should be concerned about an issue. Using a filter question first asking respondents whether or not they were concerned with an issue and then asking those that were concerned to rate their degree of concern resulted in significantly fewer people showing concern than the former approach.” Similarly, I posit that asking how satisfied members are with the Bar “causes a bias in the direction of [satisfaction] because it assumes that subjects should be [satisfied]“ with the Bar.

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Talk about timing. No sooner did I say something nice about a state bar president when the following month he’s in hot water. Call it the burden of irreverence. I’m referring to Nevada State Bar President Alan J. Lefebvre. He’d been on a tear of late in the Nevada Bar’s normally boring monthly lawyer magazine.

As bar president, Lefebvre gets his own column, the “President’s Message.” And I’d given him an atta-boy for his unprecedented criticisms of the state of legal education and especially, for his remarks about the unauthorized practice of law. More recently, he’d decried the state’s medical marijuana law calling it reefer madness.

Catherine Cortez Masto.jpg

Nevada Attorney General Catherine Cortez Masto

But what was he thinking when he decided to go editorially commando with his latest President’s Message: Dereliction of Duty … Or is it Rule by the Guardians?”

Unhappy with Nevada Attorney General Catherine Cortez Masto’s decision not to defend Article 1 Section 21 of the Nevada Constitution, Lefebvre offered up his ten cents’ worth of opinion and earned himself back $100 dollars worth of grief. Section 21 is known as the “Limitation on recognition of marriage.” It was passed 14 years ago and states, “Only a marriage between a male and female person shall be recognized and given effect in this state.”

Lefebvre’s arguments, however, were mostly legalistic and reminiscent of the 2011 brouhaha when King and Spaulding backed out of defending the federal Defense of Marriage Act.

For the record, I disagree with him on the merits. And until the US Supreme Court steps in, so do the courts. As of last week, with state officials in Oregon and Pennsylvania opting like Cortez Masto not to challenge court decisions overturning bans on gay marriage, there are now 19 states where same-sex couples can be granted legal recognition. See “Same-Sex Marriage Supporters Keep Up Their Winning Streak.”

Angry businessman yelling into bullhorn 1Speaking his mind.

But no matter the substance — damn him for his “tone” or so we’re supposed to believe from those “powerful, vengeful people among the elite” Lefebvre ‘disrespectfully’ opined about. So much for candor, for speaking your mind — and for hanging yourself with the PC police.

At least Nevada’s soon-to-be-gone bar el presidente belatedly learned albeit at the end of his term why state bar presidents confine their bar magazine epistles to insipid interjections, inoffensive insights and doggerel defenses of the self-satisfied status quo.

Coincidentally, about the same time Lefebvre was stepping on himself in Nevada, his counterpart in Arizona was innocuously blathering about diversity in his own presidential column. Doubtless he was prompted by the loony Arizona Legislature’s attempted passage of SB 1062, a bill that allowed businesses to assert their religious beliefs to deny service to gay and lesbian customers.

But unlike the non-wishy-washy Lefebvre, the Arizona honcho didn’t say anything about the legislation let alone anything overtly or substantively controversial. Instead it was the standard mealy-mouthed bar presidential schtick — the usual cheerleading self-congratulation about how great the state bar is in Arizona.

Boy with his hands on his face uidLeastwise the sycophantically impressed Arizona bar magazine editor gushed and saluted his president for not writing about a controversial topic in a member magazine. Like playing it safe takes courage.

Perhaps the bar prez was mindful of running afoul of Keller v State Bar of California, which is ‘supposed’ to keep mandatory bars from engaging in ideological political activities with member’s compulsory dues.

Objecting over style but really mad about substance.

So back in Nevada, faculty and staff members at Nevada’s Boyd School of Law were via open letter galvanizing against“the tone” of Lefebvre’s commentary. And with their own immoderation, criticized him for his purported ‘incivility’ over Cortez Masto’s unwillingness to defend the state constitution. Imagine that,

http://upload.wikimedia.org/wikipedia/commons/0/03/Book_of_Snobs_XVIII-page_69.jpgBut I don’t for a second believe their objections were merely about style or lapsed social graces. No — bar presidents aren’t supposed to weigh in on controversial topics — at least not those the legal establishment disagrees with. Moreover, methinks some faculty members were already miffed at Lefebvre for his prior Op-ed criticisms of law schools generally and of “the law student debt scandal.”

And not like he’d singled out Boyd for any opprobrium. Indeed, as I recall, he rolled over and offered not a smidgen’s worth of reproach of the Silver State’s only law school. In fact, he contorted backwards and complimented the law school dean. File this under “no good deed goes unpunished.”

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http://upload.wikimedia.org/wikipedia/commons/thumb/c/c0/Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg/448px-Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg“RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

“As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

“Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

“We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.”

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Poster2Blogger, Boyd faculty member and letter signatory Professor Nancy Rapoport also posted exceptions to the strident solitary defense Lefebvre garnered from Ed Whelan at National Review Online entitled “Nevada Law Profs (and Others) vs. Rule of Law—Part 1 ….

Besides objecting to Lefebvre’s “tone,” Professor Rapoport also called Whalen out on his ‘disrespect.’ Oxymoronically, she advocated passionate politeness or was it polite passion? The professor even offered to debate Whalen — privately or publicly.

Piling on.

Air Bourne.gifRather incongruously, the Nevada Bar’s Board of Governors was compelled to pile on notwithstanding there already exist boilerplate disclaimers in the magazine that “Appearance of an article, editorial, feature, column, advertisement or photograph in Nevada Lawyer does not constitute an endorsement by Nevada Lawyer or the State Bar of Nevada unless specifically identified as the policy of the State Bar” and that “the views expressed are those of the authors.”

http://upload.wikimedia.org/wikipedia/commons/thumb/5/5a/Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPG/320px-Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPGI guess Keller, the faculty letter, and complaints from interest groups forced the Board to back the PC bus tire over their president. Thursday afternoon, they sent the following blast email to their members.

______________________________________________________________________________________

“State Bar of Nevada
Statement from the Board of Governors

“To all members of the State Bar of Nevada:

 “The views expressed in the President’s Column in the May 2014 issue of the Nevada Lawyer do not represent those of the Board of Governors, its individual members, or the State Bar of Nevada as a whole.

“The State Bar of Nevada and the Board of Governors embrace and welcome viewpoints of every kind and the Board assures all of our members that diversity and tolerance are valued and respected by the State Bar.

“The Board of Governors assures all members of the Bar and the public that the State Bar of Nevada does not support any use of the President’s Column for political statements. The Board has a policy that requires the State Bar President to refrain from using the Nevada Lawyer to advance personal political viewpoints.

“The Board of Governors assures all members that we will be diligent in representing you in an unbiased manner.”

______________________________________________________________________________________

Oh the ironies.

Most lawyers I know don’t bother reading the presidential pabulum published in bar magazines. So ironically, but for the outsized attention generated by law school faculty and staff, very few would’ve noticed Lefebvre’s commentary.

photoThe even greater irony, however, is that as it is, lawyers don’t have the Free Speech rights everybody else has. Lawyer free speech is limited by ethical rule —  a topic I’ve often posted on, e.g., here and here and here. So it’s sad that when lawyers dare to state their opinions in such public ways, they need to also remember to duck before the first shoe gets thrown.

And finally, these days the term civility gets bandied about a lot. And yet civility is no longer an abstract principle but has come to mean what’s subjectively polite in the eye of the beholder. But unfortunately, the extension of aspirational courtesies and respectful considerations has become increasingly dependent upon who’s the one being gored.

http://www.lamed.blogspot.com/2006_01_01_archive.html

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Photo Credits: “Danger: Hot Water Will Scald!” by Wesley Fryer at Flickr via Creative Commons license requiring attribution; Catherine Cortez Masto, State Attorney General of Nevada, at Wikipedia Commons, public domain; “wise monkeys,” by Thunderchild7 at Flickr via Creative Commons license requiring attribution;Engraving on wood by W. M. Thackeray himself, for the first edition of The Book of Snobs. Chapter XVIII, “Party-giving snobs” Mr Snob and Miss Smith, at Wikimedia Commons, public domain;”Officer writing a letter,” attributed to Gerard ter Borch at Wikimedia Commons, public domain; Air Bourne.gif by Matthew Korklan at Wikimedia Commons, public domain; “tata mini bus rear wheel” by Biswarup Ganguly at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license;”Speak No Evil,” by Theron LaBounty, notanyron, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “this cow has an itch,” by Brent Moore at Flickr via Creative Commons license requiring attribution; bull goring at www.lamed.blogspot.com

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Note: The State Bar of Arizona begins online elections tomorrow to elect 11 lawyers from three counties to its 30-person board of governors. I am reblogging this from Transform the Bar: 2014 ARIZONA BAR BOARD OF GOVERNORS ELECTION.

It is the Op-ed I wrote in March for a local business and legal publication, The Record-Reporter, which published it a week after the State Bar of Arizona’s Board of Governors voted to increase member dues. Tomorrow’s vote, which runs until 5 PM, Wednesday, May 21, 2014 is being called one of the most important elections in recent years. Why? Because it can potentially signal at long last, a new direction for the State Bar of Arizona.


WILL ANY OF US EVER LIVE LONG ENOUGH TO SEE AN ACTUAL DECREASE IN DUES? ONE LAWYER DOESN’T THINK SO.

By Mauricio “Mo” Hernandez

March 7, 2014

People 15551“What kind of bar do you want?” asked Arizona Bar Executive Director John Phelps. This was last week when the bar’s board of governors debated whether to raise members’ dues. The board had tried last December. But the largely unannounced below-the-radar vote 12 days before Christmas ended up postponed after brouhaha erupted among members.

The last licensing fee hike was in 2005. Happily for board members who’ve never met a fee increase they didn’t like and who wanted more of the same, the answer to John’s question last Thursday came by 12-11 vote in their favor.

Speaking of rhetorical questions, I have a better one, “How old will I be when the bar lowers dues?” With an annual budget topping $14.6 million, almost 60% of which is compensation and benefits, methinks I’ll be ashes in search of an urn before that ever happens.

Work World 38According to the 2013 ABA Survey, among mandatory bars with more than 20,000 members, Arizona’s budget is already 125% higher than the $11,720,787 average for comparable bars. High budgets notwithstanding, last week’s board meeting also revealed that by the time the total dues increase is fully implemented, the bar projects a $4.1MM surplus. But dues still had to go up.

Hardly a surprise for Arizona lawyers consigned more to stoic resignation than sulky rancor. In four consecutive $15 annual increments starting next year, dues will increase an overall 13% for a total of $60. By 2019, Arizona lawyers will be paying $520 per year. And by separate motion, the board also imposed higher fees for in-house counsel; admissions on motion; pro hac vice; and MCLE late fees.

No matter that Arizona presently finds itself among the ‘leaders’ in highest costs to practice bars in the U. S. On an apples-to-apples dues comparison, Arizona is currently among the top 5 of the country’s 33 mandatory bars behind Alaska at $660 and Hawaii at $522. And not that going inactive saves you, either. Inactive members pay $265 annually, highest among all jurisdictions and equal to or higher than what 20 other jurisdictions charge active bar members.

‘Quo Vadis?’
When a bare majority of the bar’s governors voted to stay the course, they meant a fully-loaded ‘full-service,’ ‘first-class’ bar. That’s an objective made more attainable when others foot the bill. So no need for tea leaves to read or for bones to throw to divine the bar’s high-priced future.
Miscellaneous 603
But does this mean members are forever destined to sing a merry refrain to “Whither Thou Goest?” That was really the nub of what John Phelps asked. Do members want or need an organization trying to do everything from protecting the public from its lawyers; to regulating the profession; to advancing the administration of justice; to educating lawyers; and ostensibly, to enhancing the legal profession? Um, don’t mind the mule going blind, just load the wagon.

Or will members eventually resist the appropriation of limitless resources and instead ask the bar to stop trying to be all things for all people? That’s what happened in Washington State in 2012 when a majority of lawyers objecting to persistent mission creep in a tough economy rolled back dues 25% by referendum. Or should the bar just limit itself to lawyer discipline and licensing? That’s what Nebraska’s high court ordered its bar to do last December. Nebraska dues fell from $335 to $98.

Besides, do all those multi-headed missions even do any good? Someone should find out and I don’t mean having the bureaucratic stakeholders do the asking.

People 1055Looking to the future.
Lawyers increasingly face cost and compensation pressures from clients who are demanding more for less. Meantime the delivery of legal services continues liberalization allowing non-lawyer legal document preparers; non-lawyer owned global law firms; and emerging information technologies to compete in the legal marketplace. At the same time, young lawyers burdened with six-figure student loan debt continue facing a historic oversupply of lawyers in a fearsome job market where only half will find full-time, long-term lawyer employment.

These days, the legal academies and legal establishment pay lip service to the changes in the profession. But in truth, girded by group-think and an abiding faith in the status quo, very few actually do much transformational work. Sure a handful of bars belatedly adopted mandatory mentoring programs purporting to help new lawyers transition into practice. Always better at self-congratulation than self-assessment, those bars will be hard-pressed to measure efficacy. Will those mandatory programs actually provide benefits? Or are they window-dressing hiding one more bar revenue stream?

Several years ago, lawyer and legal ethicist Richard Zitrin criticized his California bar in a different context for its then perceived lapses. He observed, “On the other hand, the State Bar has unfortunately long been more interested in how things look rather than how they really are.” Here in Arizona, though, when it comes to the high cost to practice, count on both being true. A full service bar looks expensive and it really is.


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Last Sunday night I skipped Mad Men and Game of Thrones and didn’t finish reading Radley Balko’s Rise of the Warrior Cop. Instead I stayed up late posting a new blog.

Another blog? It’s not like I’ve been keeping up with this one like before.

http://upload.wikimedia.org/wikipedia/commons/thumb/5/56/Expression_of_the_Emotions_Figure_5.png/320px-Expression_of_the_Emotions_Figure_5.pngBut I’ve got my hackles up. Again, you might say or it’s just a chronic condition. It is, after all, why I use so much hair gel.

This new project has one specific short-term purpose: to help elect a slate of candidates to Arizona’s Bar Board of Governors. Voting starts May 7th and runs until 5:00 pm, May 21, 2014.

The idea is that new people may finally bring about real change. You know, conceptual novelties like improved fairness, accountability, cost-consciousness and transparency. See “Transform the Bar: 2014 ARIZONA BAR BOARD OF GOVERNORS ELECTION.”

Nap Time 8O.K., so staying up late and getting up early may not be the best thing for health. There’s another pair of studies warning against burning the candle at both ends. Insufficient sleep causes daytime drowsiness and insomnia heightens stroke and heart attack risks. Still there’s truth sometimes in the inanity .

http://upload.wikimedia.org/wikipedia/commons/thumb/7/75/Don_Quixote_6.jpg/382px-Don_Quixote_6.jpgBut trying to reform and transform your friendly state bar may be worth losing some sleep — even if I’m ultimately tilting at windmills.

During the last board election three years ago, turnout was underwhelming. And lawyers didn’t even have to leave the office since it was all done online. Fewer than 25 percent voted, which means over 75 percent of Arizona’s lawyers didn’t cast a ballot.

Admittedly, most times nobody pays attention to what the bar does. Contrary to the healthy egos down there, no one much cares how the wienerschnitzels are made or who the sausage-makers are or how many times they slap each others casings. By and large, state bars are among the worst instances of bureaucratic infirmity. See Time for real change. Groucho for State Bar Board of Governors.”

But look what happened when most of us weren’t watching, an abortive stealth vote to hike bar dues in December followed by a successful vote in February that not only increased already high annual lawyer licensing fees but also hiked a bundle of other practice fees. So much for ignoring the kielbasa makers.

This is why I’m hoping this time it’s different. Members are paying attention. And thanks to their political reawakening, perhaps this election will mean the start of a long overdue reexamination of the bar’s structure, its processes, its stale-dated thinking and “shelf life-expired status quo.”

Members are paying more attention. For instance, why did so many lawyers run for the board in Maricopa County this time? Thirty-three are competing for nine seats.

Some even think this means there’ll be more ballots cast, split votes, and a good chance to unseat the incumbents who got us choking on the sausages. We’ll see. Overrated sleep or not, at best, I’ll do my part.

 

 

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Photo Credits: Figure 5 from Charles Darwin‘s The Expression of the Emotions in Man and Animals at Wikipedia Commons, copyright expiration, public domain; Don Quixote fighting a windmill on his horse, Rocinante. By Gustave Doré, 1863, at Wikipedia commons in the public domain in the U.S. and countries with a copyright term of life of the author plus 100 years or less.

 

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http://upload.wikimedia.org/wikipedia/commons/thumb/a/ad/WMATA_third_rail_at_West_Falls_Church.jpg/320px-WMATA_third_rail_at_West_Falls_Church.jpgIn politics, there’s the ‘third rail,’ a metaphor for topics so charged that like a train’s exposed electrical conductor, they’re too dangerous to touch. For at least some lawyers, the profession’s ‘third rail’ is the lawyer discipline system.

The closest most want to brush against lawyer discipline is a glance at the list of sanctioned lawyers in the monthly bar magazine. And that’s just in case there’s someone there they know.

In Arizona, the consumer protection agency also known as the state bar does a good job reminding its lawyers about the consequences of violating ethics rules. The bar’s website prominently features up-to-date news of Arizona lawyers who’ve been disciplined.

By comparison, bar websites in neighboring California, Nevada, and New Mexico don’t have such front-page listings. But true to its express mission of protecting the public from its lawyers, the Arizona bar additionally sends press releases publicly identifying the drubbed and the defrocked.

Afraid of the system.

But ask an Arizona lawyer to explain how discipline works or to state how many bar prosecutors there are or how much money is spent each year protecting the public and chances are good you’ll get a headlight-caught Bambi expression. More than “don’t ask” — afraid of bad karma it’s “don’t tell me — I don’t want to know.”

 

Take the financial piece, for example. Lawyer discipline takes the biggest chunk of member dues. In Arizona, the number runs about $5M annually.

But if there’s a detailed financial accounting explaining how, what, why and where those monies are expended, I wouldn’t know about it.

To be fair, that doesn’t mean such a report doesn’t exist. I may just be the last person in Arizona to know it. All the same, whether you’re talking legal elites or state or local government, transparency hasn’t been big here.

Consequently, it may simply be that run-of-the-mill members even if they’re paying for the whole kaboodle aren’t supposed to be privy to it — sort of like questions above their pay grade.

On the bar’s website, however, at least there’s an 11-page April 30, 2013 Annual Report of the Attorney Regulation Advisory Committee to the Arizona Supreme Court. Admittedly, it’s not a financial statement. It’s a statistical report of admission and discipline cases for the year. It’s also about one-fifth the size, for example, of the Washington Bar’s 2012 Lawyer Discipline System Annual Report. The Washington state report, by contrast, is replete with cost and discipline expense data.

“Ethics allegations about judge . . . .”

woman face 5But the real reason to bring up lawyer discipline today is not because I have a pent-up hankering for self-administered third-rail electrocution. It’s  because of Wednesday morning’s front-page news story concerning a persistent non-lawyer named Mark Dixon and the bone he’s been picking with the state’s lawyer discipline chieftain, presiding disciplinary judge Hon. William “Bill” O’Neil.

According to news sources, Dixon’s been complaining about Judge O’Neil since at least 2009. Indeed, almost 2 years ago Dixon even filed an affidavit in support of Lisa Aubuchon’s disbarment appeal. For those who forgot, Aubuchon was the former deputy county attorney ultimately disbarred for her role in former Maricopa County Attorney Andrew Thomas’ prosecutorial misconduct against county officials.

None of this was news to me. I caught a whiff a couple of years ago when Phoenix New Times ran an unflattering account, “Mark Dixon Disses Disciplinary Judge William O’Neil, Who He Says was a “Close” Friend, in Affidavit Filed by Lisa Aubuchon. New Times reporter Ray Stern put Dixon in a less than credible light.

But now comes this week’s news account in the Arizona Republic, “Divorce case stirs ethics allegations about judge.” Talk about an attention-grabber — especially if you’re a lawyer. So naturally, the interest of legal community types was piqued, especially when the allegations weren’t just directed at any judge but the one charged with disciplining lawyers. Even so, these were only allegations and ones that had been previously dismissed out-of-hand. So inasmuch as Dixon’s beeves had been grilling for a while and that he’d become a minor cause célèbre among local Tea Party types, why was the mainstream newspaper now taking this on? Slow news day?

http://upload.wikimedia.org/wikipedia/commons/thumb/3/34/Apatosaurus_skull.jpg/320px-Apatosaurus_skull.jpgI doubt it’s because the Arizona Tea Party and its supporters have that much pull, if any, with the state’s largest newspaper. Moreover, their support of Dixon is colored. They’re still picking their own Brontosaurus-sized bone with the state bar and the court’s disciplinary arm for defrocking their hero, former county attorney Andrew Thomas.

So it’s a mystery to me. But as for the Republic story, writer Dennis Wagner did a terrific job time-lining events and giving equal time to both sides.

Most importantly, in detailing the series of events, coincidences, and timing of the real estate short sale of Judge O’Neil’s mother-in-law’s house to his friend and subsequent business partner and the judge’s purchase thereafter of a half-interest in the home for $25,000, Wagner was smart to raise the relevant “appearance of impropriety” ethics standard.

It’s CANON 2 of the Arizona Supreme Court Code of Conduct,“A judge shall avoid impropriety and appearance of impropriety in all of the judge’s actions.” Section A of Canon 2 of the Code; rule 81, Arizona Rules of the Supreme Court, further provides: “A judge should … conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” whereas section B of Canon 2 provides in part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”

To Judge O’Neil’s inestimable credit, though, when asked about the appearance of impropriety involving the short sale transaction and subsequent purchase, Judge O’Neil told the news reporter, “In hindsight, would I have done this? The answer is ‘No’.”

No props, though, for straight-faced zealous advocacy from the judge’s lawyer, who when told by the reporter of the judge’s woulda-coulda-shoulda said, “I hate to contradict the good judge, but . . . there isn’t any appearance of impropriety.”

But no need to go into the rest of the story here. Read Wagner’s account instead.

And while this may not necessarily be open discussion at law firm water coolers, I think even lawyers apprehensive about a ‘third rail’ fan kick might by now found the wherewithal to sneak a peek at the news report — at least from under the covers.

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Photo Credits: “WMATA third rail at West Falls Church.jpg” by Ancheta Wis under the Creative Commons Attribution 2.0 Generic license, Wikipedia Commons;”Deer caught in the headlights,” by Harold Neal at Flickr via Creative Commons Attribution-NonCommercial-NoDerivs License; Skull of Apatosaurus, a sauropod by Ghedoghedo at Wikipedia Commons, under the Creative Commons Attribution-Share Alike 3.0 Unported license;

“smirk? sneer?” by makelessnoise at Flickr via Creative Commons-license requiring;”smirk or smile,” by egreg17 at Flickr under Creative Commons-license requiring attribution.

 

 

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