Portrait of the Artist Looking Unimpressed (day 27) | by Drab Makyo

Scientists at the University of London concluded last year “that the key to happiness is having low expectations.”

But did it really take scientists to reach that conclusion? Among others, the late novelist Olivia Goldsmith previously cornered the sentiment when she wrote, “The secret to true happiness is a combination of low expectations and insensitivity.”

Nonetheless, such aphorisms are helpful particularly for State Bar of Arizona members managing their low expectation happiness with their mandatory membership Bar.

Indeed, when mentoring law students and especially new lawyers, my oft-used lawyer happiness advice remains, “Remember, the State Bar is not your friend.” How else to interpret the Bar’s chest-pounding proclamations that its primary mission is to protect the public from its members?

Low-value smiley-face offers.

But thanks to successive blast emails the past weeks announcing new member ‘benefits,’ Arizona lawyers continue confounded. When it’s not acting like the guardian of the public weal, the Bar plays at being a professional association pretending to represent and advance the interests of Arizona lawyers.

Just the same, the Bar’s latest emails announce commercial discounts that barely trip the excitement meter with conventional discounts off products or services.

pfft! | by mat_walkerAlthough addressed from the Bar’s well-paid CEO, they’re undoubtedly creatures of low-level administrative staff and pitch stuff like insurance; share filing software; and most recently, virtual receptionist services. Each email was trapped by my spam filter and relegated to the junk folder. But that’s not to say the low-value affinity marketing discounts weren’t bereft of low expectations.

Little or no value to members.

Its own member surveys continually affirm most Bar members find these commercial offers wanting. In fact, the latest Arizona Bar member survey results announced last November are consistent. As many as 75% of respondents regard the Bar’s member discounts as having little or no value.

Car rental and office supply discounts or reduced prices on overpriced hotels? Most impressive — said no one, ever.

And even when the discounts involve law-related products and services, they aren’t singularly exclusive to a compelled membership association. Virtually all voluntary, optional-membership state bar associations offer similar commercial discount ‘benefits.’ See, for instance, the long list of “Member Benefits” provided by the voluntary membership Iowa State Bar Association.

Dog played with his food. | by BuzzFarmers

“I can’t let go of the excitement.”


Sadly, cutting bar dues or offering free continuing legal education didn’t pass the membership benefit threshold. That’s totally understandable — not when the Arizona Bar can instead tilt our excitement meters with 5% discounts on long-term care insurance.


Truly the negotiations to wrest the tremendous discounts from the grip of marketers must have been mano a mano.

https://upload.wikimedia.org/wikipedia/commons/b/b2/ChicagoCourtroomSpitoon_retouched.jpgNot since its lame “finish the ballot” contest (without as far as I know, bothering to announce a winner) has the Arizona Bar stirred so many spittoons of salivated anticipation.


Photo Credits: “Portrait of the Artist Looking Unimpressed” by Madison Scott-Clary at Flickr Creative Commons Attribution;”Dog played with his dog food,” by BuzzFarmers at Flickr Creative Commons Attribution; “Unimpressed” by Kirk Strauser at Flickr Creative Commons Attribution; “pfft!” by mat Walker at Flickr Creative Commons Attribution; Chicago courtroom scene with spittoon at Wikimedia Commons, public domain.

Pies in the sky.

Big Finish! | by massless

A while back, someone recommended John Molloy’s 2004 book, The Fraternity: Judges and Lawyers in Collusion. Molloy? I wondered. Wasn’t that the guy who wrote the now dog-tired advice book on sartorial corporate success?

Wrong guy I discovered. The Fraternity was written by the late John F. Molloy — not John T. Molloy. That’s a world of difference. The former was a lawyer-turned-judge-turned-lawyer and the other was a researcher and consultant who first made his bones advising New York City law firms on how clothes could enhance the credibility and authority of young lawyers before judges and juries.

Nevertheless, I finally read The Fraternity. But as it turns out, the old Dress for Success guru’s book, which I read two lifetimes ago was eminently more useful by comparison.

Instead, I was disappointed by the self-proclaimed “confessional diatribe” by the late Tucson, Arizona jurist John Fitzgerald Molloy. Long on confession and short on redemption, it was also empty of promise. With so much discussion about the Fraternity’s self-serving, profit-seeking grip on the legal system, where were the practical prescriptions?

Clarks Pie | by Capt' Gorgeous

Among Judge Molloy’s pie-in-the-sky suggestions: Eliminate the exclusionary rule. Reduce peremptory challenges. Keep lawyers out of juvenile courts in favor of trained social workers. Take away the plaintiff’s first and last argument in a civil trial. Stop random selection of juries in favor of jurors selected by public officials. Limit the bench to only those with trial experience. Ban judges from working as lawyers after serving on the bench.

In whose lifetime will those sky pies be eaten?

To be fair, there’s enough in Judge Molloy’s wisp of a 244-page memoir sans index to justify the book’s subtitle, “Lawyers and Judges in Collusion.” But the problem is that it mostly reeks of cognitive dissonance, i.e., the conflict that results from simultaneously holding inconsistent beliefs and attitudes. It’s like the chow hound who complains about his meal while asking for a third helping.

Out of both sides.

On the one hand, Judge Molloy regales his readers with how much money he made as a trial lawyer after leaving the bench, even admitting “We were infatuated with the flow of delightful cash.” And to make certain you’re suitably impressed, he goes as far as helpfully calculating the present value of his old law firm earnings.

But then on the other hand and only at the end of his career, does the 74-year old former trial and appellate judge belatedly call for incremental reform of a legal system that’s been “massaged” by “a Fraternity composed of lawyers and judges . . . into something quite different from what was intended — one that derives powers from claiming to have come from our Forefathers, but which in fact is a system that has been restructured, almost beyond recognition, by the Fraternity, for the benefit of the Fraternity.”

NYC: New York Supreme Court, Appellate Division | by wallyg

Indeed, concluding his recollections of his service on Arizona’s appellate bench, he writes, “In reviewing this chapter, I realize that I may have given the impression that as an appellate judge I was a brave dissenter, always leaning against the tornadic winds of the Fraternity’s movement toward more litigation and more lawyer-profit. The written record gives lie to such a claim.”

Sort of undercuts the argument for reform, that it’s made — only after you’ve gotten yours. Better I think what Edna St. Vincent Millay said long ago about penance, “But if I can’t be sorry, why I might as well be glad.”

Photo Credits: “Big Finish” by Chris Wetherell at Flickr Creative Commons Attribution; other photos via Morguefile.com;”Clark’s Pie,” by Ben Salter at Flickr Creative Commons Attribution; “NYC: New York Supreme Court, Appellate Division,” by Wally Gobetz at Flickr Creative Commons Attribution.
Samoan man in Hawaii | by foot fingers

Voluntary is ‘mo bettah.’


 Voluntary bar jurisdictions:

  1. Have a longer history than mandatory bar jurisdictions. The so-called integration movement didn’t start until 1913. That’s when the now defunct American Judicature Society‘s Herbert Harley motivated by the goals of overcoming low voluntary membership rolls; increasing revenues; reducing fragmentation; and enhancing professionalism; adopted bar unification as part of the Society’s law reform movement. According to research by Professor Theodore Schneyer, “voluntary state bar memberships in the 1920s included only 10% to 30% of the bar.” Parenthetically, predating the creation of the American Bar Association by 4 years and besting the New York State Bar Association by 2 years, the Iowa State Bar Association was formed in 1874 and claims to be “the oldest voluntary state bar association in the United States.” 18 jurisdictions in the U.S. are still voluntary. And to this day, voluntary bar membership in Iowa approaches 90%;
  2. Scandalized | by CarbonNYC [in SF!]Tend to have lower overall costs to practice; See Fact Check;

  3. Accomplish the public-protection goals of regulating discipline, managing bar admission, ensuring ethical standards, and registering lawyers, without integrating an existing bar association because these objectives are subject to statute or court rule and are not the responsibility of an integrated bar. For example, virtually every state in the country has in place court rules or statutes prescribing caretaker regulations when a lawyer disappears, dies, or is declared incompetent. And the same holds true for client protection funds, which likewise exist in both voluntary and mandatory bar jurisdictions. (The State Bar of Arizona makes much of its own lawyer caretaker conservatorship program although it budgets a mere 0.206% of a $14.5M budget to further buttress the purported necessity of a mandatory bar by virtue of having the program. But as of June 1, 2015 like almost every state in the country, Arizona has no rule requiring an attorney to designate a successor/surrogate/receiver in case of death or disability. A Rules Petition, however, was submitted in January but the matter was continued);

  4. Avoid the conflicts of interest between lawyers and the public. Voluntary state bar associations are autonomous private professional associations that unlike compulsory bar associations serve the interests of their voluntary members. They do not function like public agencies or regulatory bodies that subordinate member interests in favor of what mandatory bar leaders define as ‘the public good.’ And also unlike mandatory bar associations, the financial self-interest of voluntary associations is tied to a value proposition. Lawyers will refuse to maintain consensual membership in an association where the financial cost exceeds the value received;

  5. Without the Keller restrictions imposed on mandatory membership bar associations, voluntary state bar associations amplify the legal profession’s legislative voice in the lawmaking advocacy process. See, for example, Minnesota State Bar Government Relations and the Illinois State Bar Legislative Affairs Department;

  6. Jen, kissing the First Amendment goodbye? | by jasoneppinkProtect lawyer First Amendment rights without infringing on free speech and an individual’s freedom not to associate, which in the case of mandatory bar jurisdictions, results in the individual being compelled as a condition of earning a living in their profession, to contribute to an association which uses those fees to conduct activities to which that individual objects;

  7. Avoid recurring litigation over the use of compulsory dues for ideological activities; Most recently, see Fleck v. McDonald;

  8. Offer programs and services that favorably compare and even exceed those offered by mandatory state bar associations, including law office management practice services; insurance programs; reduced-cost and free CLE; Find-a-Lawyer member directories; Access to Justice initiatives; job hunting resources; Sections and Committees; lawyer referral services; Publications; Young Lawyer Divisions; Legal Research like Fastcase and Casemaker; Mentoring programs; leadership development programs; Annual Meetings; high school mock trial programs; community pro bono; ethics opinions and practice resources and even online practice tools. (Instead of making a good faith effort to ascertain the scope, content and quality of programs, services, and activities conducted by voluntary bars, mandatory bar proponents prefer to hide behind patent nonsense to justify compelled association);

  9. Are no different from mandatory bar associations in offering lawyer assistance resources to assist lawyers with problems with alcoholism, drug abuse and mental or emotional disorders. See, for instance, the New York State Bar Association’s Lawyer and Judges Assistance Program;

  10. Do not increase costs to the public since lawyers pay 100% of the costs of lawyer regulation in every U.S. state and territory. It is completely fallacious for mandatory bar proponents to spuriously claim that a mandatory bar has to be preserved because their programs and services could not be duplicated by a voluntary bar or that the elimination of a mandatory bar would place burdens on taxpayers. 


Photo Credits: Samoan man in Hawaii, by Steve Bozak at Flickr Creative Commons Attribution; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution; Scandalized by David Goehring Flickr Creative Commons Attribution.

(1) there’s no empirical support that mandatory continuing legal education enhances lawyer competency or professionalism and;

(2) the state bar has a financial interest in CLE marketing.

There was a very good Op-ed in this morning’s New York Times, Steven Harper’s “Too Many Law Students, Too Few Legal Jobs.”

I know. It’s all been said before, especially by the now declining scamblog movement.

But I still encourage you to read it, especially since Harper again challenges the American Bar Association (ABA) to do something about the dysfunctional system it’s had such a strong hand in perpetuating: law schools “operating without financial accountability and free of the constraints that characterize a functioning market.” As Harper and others have critiqued, despite its recent task force on the future of legal education, the ABA persists in doing little to effectuate real reforms concerning law school funding, tuition pricing, student debt loads and earnings potential.

Bite and breadth.

The criticisms about the state of legal education have also been made before with arguably more bite — but with equal breadth by law school professor and reform advocate Paul Campos. Indeed, in September 2014, writing in The Atlantic, Paul Campos summarized the problem like this:

“. . . the Congressional Budget Office projected that Americans will incur nearly $1.3 trillion in student debt over the next 11 years. That figure is in addition to the more than $1 trillion of such debt that remains outstanding today. This is the inevitable consequence of an interwoven set of largely unchallenged assumptions: the idea that a college degree—and increasingly, thanks to rampant credential inflation, a graduate degree—should serve as a kind of minimum entrance requirement into the shrinking American middle class; the widespread belief that educational debt is always “good” debt; the related belief that the higher earnings of degreed workers are wholly caused by higher education, as opposed to being significantly correlated with it; the presumption that unlimited federal loan money should finance these beliefs; and the quiet acceptance of the reckless spending within the academy that all this money has entailed.” See The Law-School Scam

Harper, a former big law partner, has like Professor Campos, opined extensively on the same topics, including in his 2013 book, The Lawyer Bubble: A Profession in Crisis and more recently in his law review article, Bankruptcy and Bad Behavior – The Real Moral Hazard: Law Schools Exploiting Market Dysfunction.

The themes are familiar ones, including the law school market dysfunction and how “Current federal student loan and bankruptcy policies encourage all law school deans to maximize tuition and fill classrooms, regardless of their students’ job prospects upon graduation.”

And as Harper explains, a “law school moral hazard” has been created where having incentives to do so, persons take more and more risks because someone else will bear the burden of those risks. He says this moral hazard has combined “with prelaw students’ unrealistic expectations about their careers to produce enormous debt for a JD degree that, for many graduates, does not even lead to a JD-required job.”

Meantime, as Harper and Campos are so good at reminding, for law schools this just means pay no mind as their beat goes on.


Photo Credits: All photos via morguefile.com

Untitled | by Eddy Pula

Engagingly educational continuing legal education program? I don’t remember when. But who said lawyers were supposed to be engaged let alone entertained at these programs. Continuing legal education is instead meant to supposedly make lawyers more competent and more professional. But the thing is, there’s never been empirical support for that proposition.

File:Pirouette.gifAll the same, virtually all state supreme courts continue to mandate CLE while state bar program providers continue to pirouette around whether the programs improve attorney competence or enhance professionalism.

Indeed, among my favorite dance meanders are the ones offered by the New Jersey Supreme Court’s Ad Hoc Committee on Continuing Legal Education, which was tasked in 2007 “to determine whether it could find a compelling case against the establishment of mandatory continuing legal education (MCLE or CLE) in New Jersey.”

“Admittedly,” the Committee said in its 2008 report, “empirical data affirming the effectiveness of mandatory CLE do not appear to exist.” But did that bit of obviousness stop the Committee from predictably recommending the comprehensive implementation of mandatory CLE?


Of course not, even as the Committee was admitting that the absence of evidentiary support “has been acknowledged by almost every jurisdiction that has adopted mandatory CLE, perhaps in recognition that the critical problems associated with defining competence and developing a test regimen to measure for improved performance have not been resolved.”

Or just maybe, the better reason for the lingering inability to find a competency testing metric is that it’s preferable to keep offering up that ‘X is true because there is no proof that X is false.’ Or as the Committee said in its report, “Given that continuing education is inherent in the concept of professionalism and the widely held view that voluntary continuing legal education is beneficial, what reasons, other than the absence of empirical data, mitigate against making CLE mandatory? We have found few, if any.”


So as of January 1, 2010, Rule 1:43 has required all New Jersey licensed attorneys to take 24 hours of continuing legal education every two years, including at least 4 hours on topics related to ethics and/or professionalism.

And with that preamble, here’s the latest FREE CLE update. The usual disclaimers about availability, content and jurisdictional creditworthiness apply.



Florida Bar

Earn More, Stress Less: Using Technology To Make Solo and Small Firm Practice Sustainable

(1) hour on demand CLE

Building the Small Firm Marketing Program: From Planning to Ethical, Effective Action

2.5 hours of on demand CLE



Free one-hour webinar, “The Happy Lawyer’s Guide to Running Your Practice Like a Business.”

Sign up at:


Practising Law Institute

Reentry in California – Overcoming Legal Barriers to Community Reintegration Following Incarceration 2014 (Free)

On-Demand Web Programs
Full Seminar Approved for up to 3.0 or 3.5 hour credits in multiple jurisdictions
Launch Now


Photo Credits: Untitled by Eddy Pula at Flickr Creative Commons Attribution; Pirouettes performed by Daria L during Paquita grand pas de deux adagio by Jim Lamberson at Wikipedia Commons.

Pants on Fire | by Mike Licht, NotionsCapital.com“States that have voluntary bar associations by and large do not have lower overall bar dues,” says a footnote in the Draft Report posted by the Arizona Supreme Court’s State Bar of Arizona Mission and Governance Task Force. “They charge both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona.”

Sounds well and good — but too bad for the Kool-Aid guzzlers, it doesn’t pass a fact check.

Caricatures 14You can read the Draft Report here and find the above-mentioned quote at the bottom of page 13.

Fact-checking the Bar.

After the better part of a year, you’d think the Task Force would have spent a little more time fact-checking and getting its story straight. Or maybe like George Costanza, it just believes it — so it must be true.

Certainly, there’s a lot in the Task Force Report upon which to take exception, not the least being the conflated mythology again fluttered out on frayed wings that only a mandatory bar can “ensure professionalism and competence” and that only a mandatory bar can protect the public from its lawyers.

Night Shift 31This, of course, ignores the robust lawyer regulation and disciplinary regimes in 18 voluntary state bar jurisdictions. It also wrongs and misconstrues the panoply of membership benefits provided by voluntary bar associations, to name a few, like Ohio’s, Iowa’s, Colorado’s, New York’s, and Illinois.’

Indeed, many if not all the voluntary bar association programs and benefits rival and even exceed the programs, activities and services offered by the compulsory State Bar of Arizona.

And yet, the Arizona Bar likes to pretend that only mandatory bars make available client protection funds; offer law office management and lawyer assistance programs; provide continuing legal education courses; present annual bar conventions; publish monthly bar magazines or support ethics hotlines. Begging the question, the Draft Report shamelessly proclaims,These invaluable services will cease to exist with the demise of the integrated bar because no voluntary bar in Arizona offers them.”

Instead, see what happens in jurisdictions with voluntary bar associations, for example, check out: Ohio and Iowa and New York and Colorado and Illinois. Lawyers in those jurisdictions choosing to join their state’s voluntary bar associations don’t take a back seat to anything offered by the mandatory State Bar of Arizona.

Twain's Men's Room | by bump


morguefile.com photo

It takes two hands to put out this whopper.

As for the whopper about how both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona,” the facts are set out in the chart below.

The data concerning optional voluntary state bar association membership dues was obtained from readily available public online information from voluntary state bar jurisdictions. The attorney registration fee information comes from state court websites although since the Arkansas Supreme Court fee registration information was not publicly accessible, it was confirmed by a licensed Arkansas lawyer.




click to enlarge

The fees in the chart are the full fee maximums for lawyers practicing past the entry-level graduated fee periods. Newbie lawyer fees are typically discounted.

No MCLE in Connecticut, Maryland and Massachusetts.

And then take note of something else not mentioned in the chart. While the breathtaking $945.00 combined regulatory assessment and separate voluntary bar dues appear to make Connecticut a high cost to practice jurisdiction, the overall cost to practice is still lower than in Arizona. Why? Because unlike Arizona, Connecticut does not have mandatory continuing legal education (MCLE). This saves Connecticut lawyers anywhere from $600 to $1000 per year versus what Arizona lawyers pay to satisfy the annual 15 hour MCLE requirement.

The same is true of Massachusetts with its sizeable $761.00 combined regulatory assessment and separate voluntary bar dues. Massachusetts does not have a MCLE requirement. Nor does Maryland, which at $280.00 for both regulatory assessment and voluntary bar dues must be the lowest cost to practice jurisdiction in the United States.

Comparing overall costs to practice.

Work World 14The bottom line is two-fold: One, in voluntary bar states, lawyers can elect to pay only their court-mandated regulatory registration fees and forego joining a voluntary state bar association. This automatically reduces their overall cost to practice as compared to Arizona.

Two, the exact opposite is true of the Task Force’s claim that Arizona’s bar dues are often exceeded by the combined regulatory assessments and voluntary bar dues in voluntary bar jurisdictions. Lawyers in states that have voluntary bar associations pay lower overall bar dues, in some instances much less than the current and still escalating annual membership fee in the State Bar of Arizona, which hits $520 per year on January 1, 2018.


Photo Credits: “Pants of Fire,” by Mike Licht at Flickr Creative Commons Attribution ; Twain’s Men’s Room, by Robert Occhialini at Flickr Creative Commons, Attribution-NonCommercial 2.0 Generic License.


Get every new post delivered to your Inbox.

Join 130 other followers