May 11th is Twilight Zone Day, an unofficial holiday that celebrates The Twilight Zone, that iconic 1960’s era television anthology replete with unexpected twists, surprise endings and of course, the bizarre. What an appropriate day then to comment on a blast email from the president of the State Bar of Arizona.
It was an “update” received a few days ago following the defeat of HB 2221. This was the bill that having passed the Arizona House and legislative committees in both houses, came within 5 votes in the Arizona Senate of getting to the governor’s desk. The legislation failed to pass the Senate on May 5, 2016. Bar reformers vow to continue the fight next legislative session.
As for the bar president’s email, too bad it again mischaracterized HB 2221 as “the bill that would have created a two-tiered membership within the State Bar of Arizona.” Two-tiers? To practice law in Arizona, there’s only one tier. It’s called mandatory membership in the Arizona Bar, which would have singularly remained the requisite precondition to practice law in the state.
In truth, HB 2221 would have helped protect the constitutional rights of Arizona lawyers. And it would have increased transparency by subjecting the Bar to Arizona Public Records Law — like all other state regulatory bodies.
The principal reason the State Bar opposed the bill was because HB 2221 would have forbidden it from using mandatory dues for anything other than lawyer regulation. Bar leadership didn’t want to lose access and control over both regulatory and non-regulatory mandatory assessments paid by Arizona’s lawyers.
The other reason the Bar disliked the bill was because as the bar president’s email intimated, it didn’t see the need for greater public transparency. The Bar has long been a tone-deaf master of self-congratulation and self-delusion. Hardly a surprise then that the bar president declared, “our organization has worked to be exceptionally transparent.” This from the same organization that fails to provide detailed budget expense information to its members and that attempted to pass a stealth dues increase 12 days before Christmas 2013. It’s also the same organization that tried to disband member sections and impose a CLE precertification revenue enhancer both while it thought no one was paying attention. More recently, it’s also the organization that uses mandatory assessments to lobby against the interests of its members. And good luck getting a number on the extent and total dollar expenditure both internally in executive compensation and externally in outside lobbyist fees.
But as risibly self-delusional as that “exceptionally transparent” declaration was, the email also offered a sop to lawyers believing otherwise, i.e., that the Bar is not only non-transparent but secretive. The bar president pointed out that “a proposed Supreme Court rule would subject the Bar to open records and open meeting requirements.”
That ‘solution,’ however, leaves a lot unanswered. It may also prove less than satisfactory. Rather than submit to Arizona A.R.S. § 39-121, the Bar prefers to fall under Arizona Supreme Court Rule 123(a), which provides: “Pursuant to the administrative powers vested in the Supreme Court by Article VI, Section 3, of the Arizona Constitution, and the court’s inherent power to administer and supervise court operations, this rule [is] adopted to govern public access to the records of all courts and administrative offices of the judicial department of the State of Arizona.”
Well and good except that even though the Court falls under the statutorily defined plain meaning of “public body,” it has previously ruled for itself that “Rule 123 — not the Arizona Public Records Law — controls requests for judicial records.” See London v. Broderick and Arpaio v. Davis.
Furthermore, the bigger problem for the Arizona Bar is that contrary to its contention that HB 2221 would have created a “hybrid” State Bar, the fact is that the State Bar of Arizona is already a hybrid organization. It serves as attorney regulator and attorney “trade association.”
So as both regulator and trade association, does the Bar actually belong under Rule 123? Moreover, how will that work in actual practice? Clearly when the Bar uses lawyer mandatory assessments to perform regulatory functions such as lawyer discipline or lawyer admissions, it acts as a part of the Arizona Supreme Court. But what about when the Bar spends mandatory assessments on non-regulatory discretionary programs and services? When is the Bar required to be transparent? All the time? Or only when members police it? Or only when the Court deems it? Or only when it acts as a regulator?
And what about the real nub of the objection? How about when the State Bar uses mandatory assessments for everything else under the Arizona sun having nothing to do with regulating the legal profession to improve the quality of legal services to the public?
Credits: “Rod Serling – Twilight Zone button,” by Tony Alter at Flickr Creative Commons Attribution.