And yet, a part of me questions how fruitful such a discussion is since the Bar here, like in most jurisdictions, does not necessarily march to its own tune. The state supreme court jealously guards the music sheet and locks up the band instruments.
The Arizona State Bar has long seen itself as first and last, as a kind of consumer protection agency. It’s mission statement says as much, “The State Bar of Arizona serves the public and enhances the legal profession by promoting the competency, ethics and professionalism of its members and enhancing the administration of justice.”
Only indirectly, by promoting competence [through mandatory continuing legal education]; ethics [through lawyer discipline]; and professionalism [through both continuing legal education and lawyer discipline] does the bar see the fulfillment of its other mission of enhancing the legal profession, and ostensibly serving lawyers.
Ironically, the general public considers state Bars, regardless of jurisdiction, to be little more than ‘lawyer protection agencies.’ Even so, lawyers frequently seen themselves as besieged and beset upon.
In her article, Bar Associations, Self–Regulation and Consumer Protection: Whither Thou Goest?, Judith L. Maute cites Deborah L. Rhode, Ernest W. McFarland Professor of Law, and Founding Director, Stanford University’s Center on Ethics, and Rhode’s discussion on how differently lawyers and the public perceive lawyer discipline.
In The Profession and the Public Interest, 54 Stan. L. Rev. 1501, 1512 (2002), Rhode stated that the public perceives lawyer discipline as “[t]oo slow, too secret, too soft, and too regulated.” Lawyers surveyed, on the other hand, regard the process “as too severe and too responsive to frivolous complaints.”
In many ways, the dilemma is irreconcilable. When last I spoke with a Bar executive, we agreed-to-disagree on a possible solution set.
I suggested the Bar should continue pursuing its consumer protection function but with the following conditions. First, the Bar should separate itself completely from any semblance of a service mission to lawyers. Second, with a reduced scope of work, it could cut significantly its overhead consistent with that reduced function. And third, the Bar should stop mandating lawyer membership.
To fulfill the disciplinary function of the legal profession, the state supreme court would completely take over the entire process from intake to disposition. Lawyers would no longer pay bar dues but instead pay a separate fee for the cost of disciplinary administration. That fee, along with the imposition of fines, would make lawyer discipline self-funding.
No chance in Hell.
The suggestions are hardly innovative or proprietary. Nor do they have a chance in Hell of ever being adopted here.
But increasingly, lawyer discipline is already being managed almost exclusively by a state’s judiciary who acts as the last arbiter. State Bars do little more than act as recommending bodies.
As consumer protection agencies, the Bars could continue donning ‘the white hats’ for a likely less skeptical public. No longer forced to join in order to practice, lawyers would stop being ambivalent about the Bar’s current duality. This is a model already working in a few other jurisdictions.
The Bars would continue making disciplinary referrals to the courts for follow-up inquiry and final judgment. The Courts would continue doing what they’ve always done, much as Thomas Kempis once declared, “Man proposes but God disposes.”