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“May I ask what you’re doing?” asked the thickly accented Germanic voice through the trees.

I’d just parked my car and planned to walk one of our dogs on a recent afternoon. After riding over 3 hours in the back seat, she needed to do what dogs do. We’d alighted in what I once thought was a friendly neighborhood, the kind of welcoming place you might be happy to live in. Indeed, the location is next to one of our favorite local golf courses.

My plastic bag was in one hand and our leashed tail wagger was in the other. She blissfully sniffed the grass next to the public sidewalk while I looked up at the unexpected questioner. Through the branches, I saw he was a tall ruddy-faced senior standing in the yard of the adjoining residence.

“I’m walking my dog,” I answered as though not patently obvious even to the half-sighted. “Why are you asking?” I inquired.

Pachuco | by gabofr

“We have a neighborhood block watch,” he replied sharply. “Well, good for you,” I rejoined now understanding what this was really about.

Not that I wear my sensitivities on my sleeve. Still, I used to wonder — but no longer do — about the point in life when age, appearance or socioeconomic status finally insulates from small-minded prejudice. It never does.

Those sculpted and fired by intolerance see what they want to see. No matter if you dress neatly or drive a nice car. Or are past your middle earlies and are minding your own business on a sunny public walkway with a contented canine. For folks partial to a preferentially homogeneous community, there goes the sidewalk. You can take the Latino out of the ‘barrio’ but you never take the barrio out of the Latino.

Ethnic stereotyping and racial profiling are part of growing up in urban America.

fp031216-02 | by fontplaydotcom

And as a son of Boyle Heights, I was no stranger to it, especially in adolescence and early adulthood. I had my share, including at the hands of L.A.’s ‘finest.’

“May I ask you not to come onto my driveway,” the stranger inhospitably admonished. “Don’t worry, I have no intention,” I answered as he turned and walked away.“And you’re a friendly one,” I added.

Not that he went away. He turned and stood in his open garage and looked on and frowned. Just another bigoted day in the neighborhood.

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Credits: “Pachuco,” by Gabriel Flores Romero at Flickr Creative Commons Attribution; “fp031216-02,” by Dennis Hill at Flickr Creative Commons Attribution.

Such a Clown! | by *~Dawn~*

Talk about questionable timing. Within days of the coming vote by Arizona’s Senate on a Bill that protects attorney free speech by requiring mandatory State Bar of Arizona dues be used only for attorney regulation, comes a blast email from that Bar’s President soliciting participation in an online attorney compensation survey. “Our hope,” says the email, “is to learn more about the current economic climate so we can better understand and report on trends in the profession, and in turn, serve you better.”

Serve you better? Multiple unwarranted fee hikes later, one of the most imperious and expensive state bars in the country now asks? It’s a bit late to open that stable door after the horse has been sold for glue.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/1c/1811_PoorAuthor_RichBookseller_byWashingtonAllston_MFABoston.jpeg/433px-1811_PoorAuthor_RichBookseller_byWashingtonAllston_MFABoston.jpegBut then that’s the Arizona Bar’s age-old leadership problem. It’s tone-deaf, insular, and bureaucratically backward. And at the risk of piling on, did I also say bloated, inefficient and nontransparent?

The State Bar of Arizona’s real predicament is that while purporting to serve its members — it also tells the public it polices them. Such too, is the member confusion when their regulator claims to want to better serve them. The Arizona Bar simply can’t reconcile the irreconcilable: the inherent conflict of interest of supposedly protecting and serving the public by regulating Arizona’s lawyers while — at the same time — serving as a trade association promoting the common interests of those lawyers.

Meantime, the Bar’s pending legislation worries have everything to do with self-interest. The loss of control over 100% of the mandatory fees paid by Arizona’s lawyers means an unwelcome paradigm shift.

HB 2221 would authorize the Bar to only collect voluntary membership dues for non-regulatory operations. This means that instead of relying on coercion for its funding, a voluntary Arizona Bar would have to attract members who are willing to pay for its services. To its dismay, the Bar would be forced to be competitive. It might need to truly trim overhead and lower its costs.

photoAs for its survey, it appears the Bar anticipates sparse participation. Otherwise, why deign to offer dubious incentives to take its online survey? Participants will be entered into a drawing for a chance to be one of three ‘winners’ of free registration to the Arizona Bar’s Annual “Butt-Numb-A-Thon” Convention“a value of $455 each.” Two additional winners will be selected to receive a $100 Visa gift card.

Besides fees paid to the vendor, the prize incentives mean the survey has an additional cost to members of $1565. The easiest money to spend is always somebody else’s.

It’s also unclear from the Bar’s email if this questionnaire replaces the triennial “Economics of Law Practice in Arizona” survey, which was last done in 2013. Three years ago, the median reported salary for an Arizona sole practitioner with an outside office was $100,000 while the home office solo median was $75,000. (By comparison, if you rely on the puny survey sampling in the Nevada Bar’s Young Lawyer Section Compensation Survey released this month, the median base salary of Nevada young lawyers was $90,000-100,000. The Nevada Young Lawyer survey was based on “160 voluntary respondents” or roughly 2% of the state’s total lawyer population).

In the past,the Arizona Bar has charged members $125 for its complete economics of law practice report. See It’s unknown if the complete results of this current survey will also be sold. For more about legal profession economics, see “How about a raise?”

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Photo Credits: “Such a Clown” by Dawn Ellner at Flickr Creative Commons Attribution License; “The Poor Author and the Rich Bookseller” by Washington Allston, Wikimedia Commons, public domain;“Riveting meeting,” by Mark Hillary at Flickr via Creative Commons-license requiring attribution.

Business 1381How fitting that following an almost hour debate, the very last bill that passed out of the Arizona House at 5 o’clock last Thursday was historic legislation to protect the free speech rights of Arizona attorneys. HB 2221 passed 31-29. Among other provisions, the bill requires that mandatory dues collected by the State Bar of Arizona be used only for regulatory functions and not for nonregulatory activities like it does now. The bill now moves to the Senate.

Attorneys in Arizona must currently belong to a trade association and pay mandatory membership dues as preconditions to earning a living in their chosen profession. Arizona attorneys are the only Arizona professionals bound by such an expedient. What makes this problematic is that the State Bar uses compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes that not all members agree with.

Artists 93The Bar says it “focuses on protecting the public by enhancing the profession, not politics.” In reality, the Bar has an odd way of showing it’s apolitical. Pay no attention, for example, to Bar executives and its lobbyist fighting legislation to eliminate the Bar’s inherent conflict of interest manifest in the claim to protect the public from lawyers while contemporaneously serving lawyer interests.

Last year despite the Bar’s steadfast ongoing opposition to voluntary bar legislation, Bar CEO John Phelps told the ABA’s Bar Leader Magazine, “If we can’t answer the questions about why a mandatory bar is a better model for folks in Arizona, then we ought not to be a required bar.”

The Bar’s resistance has everything to do with preserving a model that protects its bureaucratic self-regard. The loss of most of its mandatory dues monies would mean a sea change for its blithesome bureaucrats.

State Bar’s Free Speech.

Politicians 81Besides reaffirming state supreme court authority over lawyer regulation under the Arizona Constitution, HB 2221 also respects the State Bar’s free speech rights. It does not restrict the Bar’s ability to lobby or take political or ideological positions so long as those activities are voluntarily funded by attorneys. This provision is key because the bar is again distorting facts to serve naked self-interest.

Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar cannot compel attorneys to fund the Bar’s lobbying activities unrelated to regulating the practice of law. But nothing in Keller prevents the State Bar from collecting voluntary funds from attorneys to engage in any political activity that it wants. Just because the State Bar presently has a policy that it will not engage in political activities beyond those authorized in Keller, there is nothing to stop the Bar from changing that policy tomorrow. As a result, HB 2221 has no bearing on whether or not the State Bar will expand the array of political activities it chooses to engage in with voluntary funds.

Chutzpah redefined.

Game Show Hosts 9And in what can best be characterized as redefining that classic definition of Chutzpah, the Bar has begun audaciously arguing that a vote against HB 2221 would protect attorneys’ First Amendment rights! Why? Because Bar members are supposedly currently protected by U.S. Supreme Court precedent limiting the political speech of mandatory bar associations. The precedential case is Keller v. State Bar of California that held that mandatory membership bar associations can use members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

FunHouse 119Turning the argument on its head, the State Bar is saying with a straight face that it’s now protecting free speech by lobbying against legislation that protects free speech. It’s a brazen rephrasing: “I was against free speech before I was for free speech.”

Heavens Angels 87Were it truly interested in safeguarding the free speech rights of its members, the Bar would have by now taken affirmative steps and much more meaningful ones than its pious protestations of so-called ‘Keller-purity.’

Moreover, how does lobbying against voluntary bar legislation that has nothing to do with intruding on the Court’s lawyer regulation authority or with improving the quality of legal services satisfy the criteria under Keller? It doesn’t.

Instead, the Bar complies with Keller under the broadest of interpretations. Anything and everything goes so long as the activities encompass “core interests of the mandatory bar, interests of the legal profession, improve the administration of justice, or promote advancements in Arizona jurisprudence.” And oh, just in case, there’s the ‘catch-all’ —  “any other activity authorized by law.” See Criteria so expansive you could drive a dump truck through it.”

Assuming members ever find out about objectionable activities — and only after the fact — the Arizona Bar says members have “the option of challenging the Bar to ensure that any position taken is within the Keller guidelines.”  This is a purgative past the point of needing it. What matter if a member objects to the Bar’s lobbying against legislation protecting attorney free speech if the objection occurs after the lobbying has killed the legislation? It’s a nickel-and-dime ‘remedy’ so not much of one.

No separation of powers problem.

Wildlife & Animals 5041The State Bar’s last-ditch efforts to block the bill in the House last week also centered on alleged separation of powers grounds. On the House Floor, Rep. Randall Friese, D-Tucson, a leading opponent argued that the Legislature was overstepping its bounds. He told a local newspaper, “I’m afraid this bill specifically directs the Supreme Court to do certain things. And I’m still concerned this body cannot.”

But this is incorrect as was pointed out in a well-crafted separation of powers legal memorandum that maintains “HB 2221 is consistent with the Legislature’s authority to protect constitutional rights and assure transparency in government, while respecting the Supreme Court’s role in attorney regulation.”

Friese is an Arizona physician. But unlike Arizona attorneys, he is not required to join a professional trade association to practice his profession. His only precondition to earn a living as a doctor is to pay the Arizona Medical Board $500 every two years for regulation and licensing.

Unfortunately, ‘what’s sauce for this goose is not sauce for that gander.’ In spite of the obvious intellectual inconsistency, the good doctor is not dissuaded. He’ll continue carrying water for the Bar against any legislation that puts lawyers on the same footing as his profession.

File:John Balfour Vanity Fair 1 May 1886.jpgAt one end of the spectrum, there’s news that lawyer hourly rates among the so-called guilded circle have topped $1,500 per hour. According to a report in the Wall Street Journal, these aren’t even the top end rates. The most highly specialized among these legal elites, buoyed by inelastic supply and demand, can command almost $2,000 per hour. The rarefied set billing at these rates undertake price be damned high-profile litigation. Or they’re handling antitrust, mega mergers, acquisitions, tax, and large bankruptcy restructures.

There’s a wrinkle, though, to all this high-priced gold. According to Altman Weil’s 2014 survey, while overall big firm billing rates have gone up by 4%, on average firms have been discounting hourly rates by 21 to 30%.

Then there’s the other end of the news cycle. It’s the story about the Spanish civil servant employed by a city-owned water utility who hadn’t been at work for almost six years — but no one had noticed. Talk about an employee adding ‘value’ for clueless bosses. He was only found out when his employer tried to recognize him for 20 years of service. No gold watch but a certificate. After an investigation was opened, it was learned he “did absolutely no work” from 2007 to 2010 prior to his 2011 retirement. Some $30,000 is being sought in restitution.

The story reminded me of the lazy person’s 10 commandments that I once posted about. It concerned a scientific global study by “Lancet” that ranked nations according to the laziness of their populations. I hasten to add that I cast no aspersions on the Spaniards.

Of course the real reason for bringing up $1500+ hourly rates is to make the point these rates are highly atypical — even aberrational. Among the other 99% billing by the hour, those rates are unheard of and totally unrepresentative. Indeed, that’s precisely why the über hourly rate report was so newsworthy. Most lawyers aren’t doing so well.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/9a/Big_Mac_hamburger.jpg/278px-Big_Mac_hamburger.jpgAs a matter of fact, I still remember when Jay Foonberg in his famous How to Start and Build A Law Practice was advising new lawyers without a notion of how to set hourly rates — to use burgernomics. In other words, he suggested indexing their fees to the local cost of a McDonald’s Big Mac. The suggestion was certainly more art than science. Use a multiple of 10 of the cost of a Big Mac — or something like that.

I haven’t had a Big Mac in years so I don’t know what they cost these days. Suffice it to say, however, that at an exalted $1500+ per hour that’s likely a multiple of some 400 to 1.

In Arizona, according to the most recent lawyer economics report, the median annual income was $75,000 for sole practitioners. Along with small firms, solos make up 2/3 of all lawyers. Other data suggests median lawyer annual income across the country might even be less. See “How about a raise?”

But for all I know there might be a big firm hereabouts charging 400X the cost of a Big Mac. But like I said, I haven’t had a Big Mac in a long time.

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Credits: Caricature of John Blair Balfour PC MP. Caption read “the Lord Advocate” by Leslie Ward at Vanity Fair via Wikimedia Commons, public domain;”A McDonald’s Big Mac hamburger, as bought in the United States,” by Evan-Amos via Wikimedia Commons, Creative Commons.

https://upload.wikimedia.org/wikipedia/commons/thumb/c/cf/A_Wilde_time_3.jpg/320px-A_Wilde_time_3.jpgOscar Wilde said he loved “talking about nothing. It is the only thing I know anything about.”

This week I shook my head reading that the Hon. Jonathan Lippman, former chief judge of New York’s highest court and who spent 43 years as a state court employee but never a year in private practice as a lawyer had taken a job with worldwide law firm behemoth Latham & Watkins LLP — in their New York office, of course. Judge Lippman is best remembered for his 2012 mandate that lawyers work 50 hours for free before being licensed to practice in New York.

http://images.nypl.org/index.php?id=834254&t=w New York became the first to compel pro bono work from lawyers. And it still fries my Arizona bacon. Last time I checked physicians, dentists, architects, pharmacists, engineers, accountants and other professionals have yet to acquire the special snowflake status of lawyers requiring them to provide free services as a precondition to practice their chosen professions. When altruism is coerced — not only is it no longer selfless — it is a tax.

Naturally, for proponents it’s nothing of the sort. It’s not compulsory charity but professional responsibility. Moreover, court cases dating back decades seem to back them up. Those decisions have held that lawyers as officers of the court aren’t protected by the 5th Amendment’s Takings Clause and are instead duty-bound to render service when ordered by court appointment.

https://upload.wikimedia.org/wikipedia/commons/thumb/a/a1/Guercino_God_the_Father.jpg/275px-Guercino_God_the_Father.jpgIn the Empire State, then, as the former chief judge proclaimed at the time from his seat on high, “If you want the privilege and honor of practicing law in New York, you’re going to have to demonstrate that you’re committed to our values.” 

One more burden on the uninitiated.

There are no limits apparently to the belief that ‘To whom much was given, much will be required’ even when the much that’s been given includes staggering law school debt. And never mind that law school graduates in New York and elsewhere at a time of dismal job prospects for lawyers still can’t find good paying jobs as lawyers much less pay down hellacious debts.

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b8/Jan_Steen_school_class_with_a_sleeping_schoolmaster%2C_1672.jpg/640px-Jan_Steen_school_class_with_a_sleeping_schoolmaster%2C_1672.jpg

While New York’s 2012 pro bono requirement has been roundly criticized by some, other jurisdictions enviously yearn to copy it, including most recently, California.

Mississippi looked at it several years ago as reported by the Wall Street Journal‘s Law Blog at “Forced Pro Bono: But is it Legal?” And take particular note of the trenchant opinions of commentator “Paco”: Law professors and judges who have guaranteed salaries, employer sponsored health insurance, and government retirement benefits are the perennial promoters of mandatory pro bono. Insulated from the economic vagaries of private practice, they nevertheless feel entitled to make pronouncements regarding the “moral” and related financial obligations the rest of us should bear. From my perspective as a private practitioner, the only moral imperative regarding this issue is for legal academicians and jurists to shut up.”

As for New York’s requirement, no one has deconstructed and decried it better than law school professor Paul Campos who entitled his contemporaneous acerbic takedown, “Clueless baby boomer judge orders poor lawyers to subsidize rich ones.” Or in other words, there’s nothing like vicarious noblesse oblige. Campos listed four objections, foremost being that in the hierarchy of indigent needs, legal services do not make the list of necessities.

Of Judge Lippman, Campos opined, “He has spent his entire professional career as a functionary within New York’s court system. I’m betting a Megamillions ticket that he doesn’t have the faintest idea how preposterous it is, under current circumstances, to expect aspiring lawyers to work for free as a precondition for bar admittance in New York of all places.”

broken and untied moccasins | by TracyKoPhoto“Walk a mile in my moccasins to learn where they pinch” is an old proverb. But even its variant, “Until you walk a mile in another man’s moccasins — you can’t imagine the smell,” is disregarded. Whether pinching or malodorous or pristine, legal elites would rather go moccasin-less preferring instead to impose destinations on others without having traipsed there themselves.

Prospecting for clients? Paying business expenses like rent, payroll, utilities, marketing, legal research and insurance? Worrying about paying back six-figure law school tuition debts? Such concerns will never trouble the moccasin discalced. Paraphrasing Oscar Wilde, those who talk about nothing they know anything about — always know everything.

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Credits: Oscar Wilde, by Napoleon Sarony at Wikimedia commons, public domain;God the Father, by Guercino, Wikimedia Commons, public domain; Judiciary Scene : Judge Listening To Witness. Retrieved from http://digitalcollections.nypl.org/items/510d47e1-0ca4-a3d9-e040-e00a18064a99; A school class with a sleeping schoolmaster, oil on panel painting by Jan Steen, 1672, at Wikimedia Commons, public domain; broken and untied moccasins, by Tracy Ko at Flickr Creative Commons Attribution.

(As a lawyer assistance program volunteer first in Texas and now in Arizona, attorney Karyl Krug has years of demonstrated commitment to providing peer assistance, intervention, and rehabilitation support for colleagues whose professional performance is impaired because of substance abuse, dependency or mental health disorders. Krug says the Texas Lawyer Assistance Program is “nationally acclaimed” but the Arizona Bar’s program where she currently volunteers —  not so much. The Texas program was created in 1989 as the Bar’s approved peer assistance program under the authority of Texas Health and Safety Code Chapter 467. But in Arizona, confronted again with proposed voluntary state bar legislation, instead of structural improvement Krug detects a budding Arizona Bar public relations campaign as the Bar gins up surveys and marketing to belatedly put a better face on a “Member Assistance Program” Krug finds wanting. Here is her commentary).

The Arizona Bar has no Member Assistance Program.

They just want you to think they do.

Guest Blogger Opinion by Karyl Krug

During his truthiness tour to save his six-figure salary, State Bar of Arizona CEO/Executive Director John Phelps has repeatedly told lawyers and elected officials that the Bar performs two major services for lawyer members:

(1) vigorously prosecutes the unauthorized practice of law (it does so rarely and selectively); and

(2) helps lawyers in need with its Lawyer Assistance Program or Member Assistance Program, or whatever they are calling it this year.

The latter statement is so misleading I hardly know where to begin. For simplicity’s sake, I will henceforth refer to it as ALAP.

I’ve been a member of the State Bar of Arizona since 2011 but a member of the Texas State Bar for 23 years, as well as a long-time volunteer for the Texas Lawyers Assistance Program (TLAP). I am also currently an ALAP volunteer.

I testified at the Arizona House subcommittee hearings on the Bar that contrary to representations made by Mr. Phelps and elsewhere by State Bar of Arizona President Geoff Trachtenberg, ALAP is a shell of a program that is much worse than what the Arizona Bar had in 1999.

The woman running the ALAP, Regina Tepper, runs a total of five different programs for the Arizona Bar, including ALAP. She is stretched a little thin. She recently sent out the following by e-mail:

“Anecdotally it appears that we had increased success with the Peer Support network . . . some of you have shared with me that you have received calls for the first time ever and it is very encouraging that the word is getting out. If you have been to the State Bar offices in Phoenix recently you may have noticed that our ad for the Peer Support Network is now a regular slide on our lobby marquises. I hope you’ve noticed the great ad in the Arizona Attorney as well.

“As part of our year-end review of 2015, I am asking that each of you share with me the following information, if you have received calls from members, judges or their families during 2015:
• The number of individuals who contacted you. Please do not share names with me; as always, that is confidential.
• Whether those individuals contacted you for themselves or about another person
• How many contacts (total) you received, if different from the total number of individuals from whom you had contact
• A general categorization of the reason for their contact
o Mental health
o Alcohol or substance abuse
o Work-life balance, stress or burn-out
o Issue with non-lawyer family member”

Suddenly, there is a push, through screen images and advertising, to make bar members believe that there is a real Member Assistance Program in Arizona, although it is only “anecdotally” successful and the Bar has no idea how many lawyers in trouble have contacted volunteers. Mr. Phelps has been testifying that ALAP is an important and successful program for helping lawyers when the truth is he has no idea, except “anecdotally,” whether this relatively new alleged program is helping anyone or not.

As had been the case throughout the fight for a non-mandatory Bar, reality has been incrementally tweaked to bolster Mr. Phelps’s flights of fancy.

Sometime after the Bar quietly sent its former member assistance program director out of the building, it decided to start a shell ALAP. Today, ALAP is a list of volunteers with phone numbers.

One day of training, and you can volunteer to help — even if you have no experience whatsoever with alcohol and drug abuse, mental health issues, burnout, and other issues common to the legal profession that even many psychologists and psychiatrists are not fully competent to deal with.

Yet participation in ALAP is often compulsory. At the same time, ALAP’s budget for 2013-2014 is listed on the published two page AZ Bar budget as $50.

TLAP, by contrast, is run by several full-time employees and has a national network of resources; funds for lawyers in need of treatment; the annual Lawyers Concerned for Lawyers Convention; nationally known speakers; and a statewide network of volunteers ready to spring into action from Texarkana to Brownsville.

Lawyers in trouble are often referred to TLAP by the disciplinary arm of the bar, as well as by concerned individuals, before the disciplinary arm of the Texas Bar swings into action.

TLAP volunteers in recovery have to have at least a year of continuous sobriety. TLAP volunteers go out in pairs, after making an appointment, to talk to a possibly impaired lawyer or judge, to offer the lawyer help and safe harbor if they are willing to address their issues.

Participation is not compulsory. It is a third degree felony to blow anonymity of a lawyer who is referred to or seeks the help of TLAP. Their budget for the same biennium was in excess of $300,000. The Texas Bar’s published budget is 261 pages long.

I have tried to help out at ALAP but to my horror, after I received a couple of calls, I realized that ALAP has no program to send a lawyer to. One lawyer asked me if he should call the Arizona Bar for help. I said something like, “Oh, God, no!” There is no program to help them. And by that time I had seen disbarment orders citing the disbarred lawyer’s failure to complete ALAP or AMAP.

While ALAP says it is confidential, if your failure to complete ALAP shows up on a published disbarment order, it is not confidential.

Woman s face uid 14The good thing about networking is that you get to know people and, coincidentally, a speaker at the 1999 Arizona State Bar/Arizona Concerned for Lawyers CLE is an old friend. At one point, Arizona had a real ALAP and an ALCL and all the rest. I saw the copious materials for the 1999 course.

So at one point ALAP was a real deal. What happened? Who decided impaired lawyers were no longer worthy of real assistance from the Bar?

 

 

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Photos: morguefile.com, no attribution

Home Improvement 26Hat’s off — I think — to State Bar of Arizona President Geoff Trachtenberg for exercising his free speech rights and speaking his own mind. Last month, Trachtenberg emailed the General Counsel to Arizona Governor Doug Ducey to express his “candid thoughts” about why Clint Bolick, one of the nominees to the state’s highest court, was “clearly not the best candidate for the job.” And because Trachtenberg wasn’t expressly wearing his state bar presidential mantle when doing so, I guess folks can’t say he was speaking for the state’s compulsory membership bar.

But the point is hardly incidental. It goes to the heart of First Amendment compelled-speech jurisprudence under Keller v. State Bar of California.  A mandatory bar requires lawyers to join and pay dues as a condition of practicing law in the state. So when a mandatory bar spends member dues on speech that the member opposes such as lobbying against a judicial candidate, the state action that compels payment of dues infringes on that member’s First Amendment rights.

Keller came about when at its 1982 convention, State Bar of California President Anthony Murray derided U.S. Senate Candidate Pete Wilson for urging the recall of Chief Justice Rose Bird if the California Supreme Court overturned the “Victims’ Bill of Rights.” Murray’s speech and resulting bar resolution prompted 21 California lawyers to sue their state bar. Unfortunately for Murray and the state bar, Wilson went on to become a U.S. Senator and eventually Governor of California.

Incongruously, parsing a distinction between private speech and organizational speech doesn’t necessarily provide a safe harbor. See what happened last year to Nevada State Bar President Alan J. Lefebvre who thought he was expressing only his opinion not the Nevada Bar’s when he editorialized on same-sex marriage in the bar’s magazine.

Trachtenberg’s communication was one of a number of letters, emails, and phone calls from Arizonans and from out-of-staters weighing in on Bolick’s candidacy and that of other nominees. As reported by The Yellow Sheet Report (paywall) over 600 critics’ and supporters’ letters and emails sent to the governor and the Commission on Appellate Court Appointments about the state supreme court nominees were just released by the governor’s staff. Having seen Trachtenberg’s email, give the man props for candor — if not for circumspection inasmuch as Bolick was widely regarded as the front-runner.

Speaking for himself and not from the State Bar of Arizona Presidential dais, Trachtenberg opined that state supreme court candidate Bolick was “interested in bringing his brand of justice to the Court — not merely “applying the law.””

Trachtenberg also went on to add that Bolick appears to be more interested in shaping law rather than applying it and “would be better suited to being in the legislature.”

He wrote, “While I’ve not reviewed the applications of existing and former Supreme Court justices, one has to wonder if there has ever been a nominee for Arizona’s highest court who similarly lacks meaningful judicial or practical experience, let alone an actual justice.”

Oops! On January 6th, Governor Ducey announced his appointment of Clint Bolick to the Arizona Supreme Court. In making his first gubernatorial state supreme court appointment, Governor Ducey explained in a press release that “Clint is nationally renowned and respected as a constitutional law scholar and as a champion of liberty.

“He brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I’m confident Clint will serve impartially and honorably in this important role.”

Prior to his elevation as Arizona’s newest high court justice, Phoenix lawyer Bolick worked as Vice President of Litigation for the Goldwater Institute.

Home Improvement 88Based on past practice, the high court’s newest justice gets assigned as the supreme court’s liaison to the Arizona Bar’s Board of Governors.

Wondering aloud — that first board meeting presided by bar president Trachtenberg with the new justice in attendance might be awkward. But no doubt there’s fence-mending in the offing.

 

 

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