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On Sunday, the local paper ran a front page story about how $4.6M in charitable contributions was spent. It was only news because of the way some of that money was distributed to the beneficiaries.

In the aftermath of the sixth-largest loss of life for firefighters in U.S. history, millions of dollars in donations came pouring in from around the country. The donations, big and small, were meant for the surviving families of the 19 Granite Mountain Hotshots, an elite group of firefighters who died in a wildfire near Yarnell, Arizona in 2013.

WTF | by ulricaloebAccording to the investigative report by the Arizona Republic’s Robert Anglen, “One of the key organizations responsible for managing those donations now questions how some of the money was used, with hundreds of thousands of dollars spent on sightseeing trips, high-end restaurants and hotels for hotshots’ families.”

My point in mentioning this head-shaking story is not to pick on the surviving families who as Anglen points out, “did nothing wrong in accepting the donations.” Or is it to unnecessarily dwell upon what amounts to a pretty embarrassing and disastrous public relations snafu for the charities and their management. The paper’s investigative story does all of that and then some.

It’s merely to highlight once again one of life’s most sacred and unhappy truths. The easiest money to spend is always somebody else’s.

https://upload.wikimedia.org/wikipedia/commons/thumb/2/20/Portrait_of_Milton_Friedman.jpg/385px-Portrait_of_Milton_Friedman.jpg

Milton Friedman

I’ve known this all my life. And it’s one of the principal reasons that organizational, business and government transparency and the lack thereof aggravates and animates me so much. As a matter of fact, it is one of the two key drivers of my quest to reform mandatory bar associations. You don’t get any more high-handed and cavalier in spending somebody else’s compulsory dues money than the tin-eared bureaucrats running our nation’s mandatory bar associations.

The other energizer is of course, reclaiming and protecting the First Amendment freedoms of lawyers, which like the Constitutional rights of all Americans are being eroded everyday.

As for transparency and “on whom money is spent,” Nobel prize-winning economist, the late Milton Friedman said it best some 36-years ago in Free to Choose co-authored with his wife, Rose.

 

Friedman knew that if it’s someone else’s money — there’s no accountability and no real consequences as to how that money is spent.

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Credits: money, at Morguefile, no attribution; “WTF,” by ulricaloeb at Flickr Creative Commons attribution license; Portrait of Milton Friedman by Robert Hannah 89, The Friedman Foundation for Educational Choice via Wikipedia, public domain; chart via Youtube video.

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https://upload.wikimedia.org/wikipedia/commons/thumb/d/df/Jan_de_Bray_-_The_Governors_of_the_Guild_of_St_Luke%2C_Haarlem_-_WGA03124.jpg/640px-Jan_de_Bray_-_The_Governors_of_the_Guild_of_St_Luke%2C_Haarlem_-_WGA03124.jpg

I recently attended a seminar where a lawyer-lobbyist opined that non-lawyers should not be lobbyists. Influence peddling, it seems, should be the sole province of lawyers. Not that much explanation was given. Perhaps none was needed. After all, most in attendance were lawyers. Somewhere in the lawyer DNA is genetically grafted an exaggerated belief that “Anything you can do I can do better; I can do anything better than you.” 

Not that it’s true — especially in lobbying where cunning, connections, comprehension and experience count as much if not more than a legal education. Nevertheless, those advocating the supposed advantages of lawyer-lobbyists over nonlawyer-lobbyists also sniff that “Nonlawyer lobbyists lack a system of obligatory ethics norms akin to the Rules of Professional Conduct.” Apparently it matters little that such self-serving smugness is undercut by the likes of former lawyer-lobbyist Jack Abramoff.

File:Theodoor Rombouts - Christ Driving the Money-changers from the Temple.jpg

Bottom line, for lawyers fiercely wedded to the medieval guild’s monopoly-has-its-privileges — free market competition sucks. Or to Ben Franklin’s “nothing can be said to be certain, except death and taxes” — add with certitude the protectionist instincts of lawyers.

The ABA takes the lead.

Under the sheltering cover of “ponderous, backward looking, and self-preserving” bar associations, licensure was the sine qua non to supposedly protect “the uninformed public against incompetence or dishonesty.” Or at least that’s what Professor Walter Gelhorn said in “The Abuse of Occupational Licensing”  where more significantly, he also pointed out how such pretextual public protection always has “the consequence that members of the licensed group become protected against competition from newcomers.”

Ah, the joys of monopoly or as Professor Gerard Clark explains in “Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession,”

“Since its founding in 1878, the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power.”

Just-us.

Lawyer regulation to protect the public sounds good. But by regulating who can practice law, lawyers also maintain a monopoly on who provides legal services. The legal establishment accomplishes this by regulating the unauthorized practice of law (UPL) either by statute or court rule. But the rub is that bar association regulators have an inherent conflict of interest. On the one hand, they’re supposed to protect and serve the public by regulating lawyers. But at the same time, they function like trade associations promoting the legal profession’s common interests.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/m/meowzeroni/04/l/1397514359cws5o.jpgThese two purposes conflict because lawyers and the public often have different interests. When these interests conflict—such as when out-of-state lawyers or lower-cost legal services wish to compete with lawyers — lawyers use their regulatory powers to stop that competition.

Last year, for example, in the aftermath of the U.S. Supreme Court’s ruling against a protectionist North Carolina Dental Board, the State Bar of North Carolina settled its suit against LegalZoom. LegalZoom is now free to offer online document services and prepaid legal services plans to North Carolinians.

Here in Arizona, examples of lawyer interests trumping public interests include the Arizona State Bar’s efforts to stop realtors in the 1960s, legal document preparers in the 1990s, and out-of-state lawyers in the 2000s from offering services in Arizona.

When it comes to access to justice, those at the temple precincts mean access to just-us.

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Credits: The governors of the guild of St. Luke, Haarlem, 1675 by Jan de Bray, Wikimedia Commons, public domain; Theodoor Rombouts, Christ Driving the Money-changers from the Temple, Wikimedia Commons, public domain; other photos via Morguefile.com, no attribution required.

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It's A Dry Heave | by cogdogblog

This is the time of year where anywhere is better than being trapped in Satan’s boxers. Sure, we missed the 120 weather forecast on June 19th. Just the same Phoenix spent the month breaking infernal records.

And now we’re bedeviled with the glistening humidity and demonic heat of monsoon season. What a combination. But how fitting for filing the following under WHAT. THE. HELL.

  1. Utah v. Strieff: The erosion of fundamental Constitutional freedoms continues.

On Monday, June 20, 2016, a 48-year Phoenix temperature record was broken when the thermometer hit 116 by 3 pm. On the same day, the nation’s highest court further undermined the part of the Fourth Amendment that safeguards individuals from unreasonable government searches and seizures. In Utah v. Strieff, No. 14-1373, the U.S. Supreme Court weakened the “exclusionary rule.” It’s the rule that excludes evidence from trial obtained by unconstitutional police conduct.

Bill of Rights | by GruenemannThe case involved police officer Douglas Fackrell who without probable cause stopped Edward Strieff after Strieff left a South Salt Lake City house under police surveillance thanks to an anonymous drug tip. Strieff was arrested after Officer Fackrell discovered an outstanding arrest warrant for a minor traffic violation. A search of Strieff turned up methamphetamines and drug paraphernalia.

But if the stop was unlawful, shouldn’t the drugs have been excluded? Or did the existence of an outstanding arrest warrant weaken or attenuate the connection between the government’s misconduct and the discovery of the evidence?

Writing for the majority, Justice Clarence Thomas wrote that the evidence obtained was admissible “because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

In spirited dissent, Justice Sonia Sotomayor declared:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Justice Sotomayor particularly warned about the risk of “treating members of our communities as second-class citizens.”

“It is no secret,” she wrote, “that people of color are disproportionate victims of this type of scrutiny.” And she added, “. . . this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Just 5 years ago, criminal defense lawyer Michael Cicchini deconstructed the ongoing erosion of our fundamental rights in Tried and Convicted. On the heels of Strieff, the bad news is that our individual rights continue being “hammered and softened by high court judicial decisions.” These rights are “intended to protect us from the vagaries of the criminal justice system” and from the “government agents” who “are easily able to bypass, and in fact destroy, our constitutional protections.” 

           2.   Brock Turner and Raul Ramirez: Racial and ethnic disparity in sentencing persists.

Unequal Justice in America | by DonkeyHotey

As though Judge Aaron Persky wasn’t facing enough opprobrium for sentencing Stanford swimmer Brock Turner to only six months in county jail for rape, The Guardian reported last month that the same Judge Persky had approved a much harsher three-year prison sentence for Salvadoran immigrant Raul Ramirez for committing a similar crime. And unlike Turner, Ramirez expressed genuine remorse and plead guilty, which should have mitigated his sentence. See “Stanford sexual assault case revealed racial bias.”

By itself the disparity in Ramirez’s sentencing is nothing unusual. It’s commonplace. It’s only newsworthy because of the light touch administered on Turner.

According to Census and Dept. of Justice analyses by the Sentencing Project, racial disparity in sentencing and incarceration is real. Indeed, research by Dr. Ashley Nellis bears out that prosecutors and judges often treat blacks and Hispanics more harshly in their charging and sentencing decisions.

“Sentencing policies, implicit racial bias, and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. Today, people of color make up 37% of the U.S. population but 67% of the prison population. Overall, African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men.”

WHAT. THE. HELL.

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Credits: “It’s A Dry Heave,” by Alan Levine at Flickr Creative Commons Attribution; “Bill of Rights,” by John W. Schulze at Flickr Creative Commons Attribution;”Unequal Justice in America,” by DonkeyHotey at Flickr Creative Commons Attibution.

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SG_01_IMG_3458_MFI was disappointed to recently learn from a colleague about the demise of the Washoe County, Nevada volunteer program known as SAFE, Special Advocates for the Elderly. SAFE’s purpose is to assist judges by independently gathering and evaluating information about elders under or facing guardianships.

Based in Reno, NV, the Washoe County SAFE program became a victim of the great recession when grants and donations apparently dried up during 2008 to 2010. The sad consequence was that an indispensably meritorious organization was forced to shut its doors. A shame I’m late on the news.

SAFE

rep.5 | by simajeSAFE volunteers are appointed by the court in civil or criminal matters involving allegations of exploitation, abuse or neglect of a vulnerable adult or ward. In addition to acting as the court’s eyes and ears, SAFE volunteers provide essential companionship that improves the quality of life and enhances the dignity of at-risk elders. And unlike financially motivated stakeholders, these volunteers work autonomously for the court as trained advocates not conflicted by financial self-interest.

The model for SAFE is the Court Appointed Special Advocate (CASA) program for children. CASA advocates “for the timely placement of abused and neglected children in safe, permanent homes and for the highest quality of their care while they are under the court’s jurisdiction.”

rep.1 | by simaje

SAFE volunteers are trained to investigate the appropriateness of guardianship for elders by visiting residents in nursing homes and other facilities. They review court documents and accounting records. They interview witnesses, family members, attorneys, and facility staff. Advocates prepare reports of their findings for the court and attend court hearings for the wards.

I’ve been remiss not keeping up with the topic of elder financial abuse here as I once did. The problem hasn’t gone away. Far from it. In fact, I still think SAFE ought to be duplicated throughout the country.

Happily, the SAFE program created 6 years ago in Douglas County, NV continues to thrive. I’ve even heard Douglas County’s SAFE has become a state model and that it may be adopted by other Nevada counties.

https://i0.wp.com/cdn.morguefile.com/imageData/public/files/b/bjwebbiz/preview/fldr_2008_11_02/file000228637046.jpgIndeed, last week the same Nevada colleague speculated that SAFE’s laudable objectives may even be gaining traction with a Nevada Supreme Court statewide commission created a year ago to study the administration of guardianships in Nevada’s Courts.

Under Nevada Supreme Court Administrative Order ADKT 0507, the Commission to Study the Creation and Administration of Guardianships in Nevada’s Courts has been reviewing the processes for creating guardianships and conservatorships, stakeholder accountability, court documentation and tracking, judicial training, and any resources available or needed to assist Nevada’s courts in administering guardianships.

While it’s commendable Nevada’s high court has tasked a state commission to undertake this comprehensive review, why does it always seem such praiseworthy initiatives only occur in temporal proximity to media scrutiny, scandal and public embarrassment?

the Clinquant of the Future | by DerrickTLike in other jurisdictions, including Arizona’s, probate court reforms come in fits and starts and seemingly only after disconcerting media revelations. In 2011, for example, The Arizona Republic published a multi-part investigation, “Probate Court: A Troubled System,” which “revealed that Maricopa County Probate Court is allowing the life’s savings of vulnerable adults to become engines of profit for attorneys, for-profit fiduciaries and care providers. Their fees can drain a large portion of the assets of people who have lost the ability to take care of themselves.” Court reforms and remedial legislation followed.

In Nevada, ongoing problems with the probate system in Clark County came to light in a series of Las Vegas Review-Journal articles published in April 2015. “Cases high­lighted by the newspaper showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of a ward’s finances even though it is required by state law.”  Two months later, there was a statewide guardianship commission.

DSCF1286 | by rahnekat

But no matter the timing or how belated, this ought not diminish the importance of the Commission’s charge. Past Supreme Court Chief Justice James W. Hardesty is Chairperson and is joined by stellar state jurists with longstanding interests in doing right by Nevada’s most vulnerable populations.

Additionally, the Supreme Court’s Order limited the Commission membership to no more than 20 representatives from the public and private guardianship system. And in a refreshing departure from the insular approach too often taken by Arizona’s high court, Commission members also include members of the state legislature and even the news media. Public testimony has also been taken statewide.

And so strong is the Commission’s interest in getting it right that the deadline for the its final report was recently extended by the current Chief Justice to September 30, 2016. The Commission’s website has news, documents and forms as well as meeting recordings. I will keep you posted.

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Credits: “rep.5” and “rep.1” by sima dimitric at Flickr Creative Commons Attribution; “the Clinquant of the Future” by Derrick Tyson at Flickr Creative Commons Attribution; “DSCF1286 Nevada Supreme Court in Carson City. January 18, 2011” by Rahne at Flickr Creative Commons Attribution; other photos via Morguefile.com no attribution required.

 

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Unlike new-found inquiries into the source of Jimmy Page’s guitar chords, there’s no question about the common progressions two lawyers strummed this month. Decrying their decisions to attend law school, their observations underline how when it comes to law school, the stairway leads to the other place — not to heaven.

The two lawyers, neither currently practicing law, wrote respective commentaries that caught my notice. The first was Steven Waechter, a 2009 Drake Law School grad who quit lawyering after just a few years. He is an inactive member of the Iowa Bar and currently works in consumer goods manufacturing.

On his Linkedin page, Waechter states, “I consider my sojourn into the law to be a false-start career.” When he left Drake 7 years ago, it was the middle of the ‘Great Recession.’ The scam blogger movement was in mid-boil. And coincidentally, 2009 was also the year another Drake grad began vitriolically venting a NSFW blog called Third Tier Reality.

For those unfamiliar with the term,“scam bloggers” describes a community of woefully indebted law school student and graduate bloggers. Some 10 years ago, they began making mostly anonymous online allegations about how law schools were scamming students with inflated post-graduation employment statistics. Also see Noam Scheiber’s story in Sunday’s New York Times, “The Law School Bust.”

A 2012 law review article described the movement’s context this way:

“While there have always been economic and financial pressures
around the margins of law, law practice, and law school, these marginalia
are becoming the new text. Approximately half of all students attending law
school today will not get jobs requiring a J.D. Even a large percentage of
those with law jobs will be underemployed, and a startling number will not
see a meaningful return on the approximately $150,000 investment in their
legal education. Law school debt has skyrocketed, and many recipients will
live poverty-level lives while struggling to cover their debt service obligations.
Others will descend into a hopeless spiral of nondischargeable student
loans, wrecked credit scores, and miserable low-end jobs.”

j0385401However, Waechter is not a scamblogger. But he is an engaging and passionate commentator. In fact, in 2014 he authored the op-ed, “Law School is Broken” where he opined, “American law schools take bright, ambitious young people and leave them broke, humiliated, deeply indebted and disaffected.”

Two years later, Waechter’s opinions haven’t moderated. This month he followed up with “If You MUST Go to Law School.” In this commentary, he echoed many of the arguments of the scam bloggers and warned the still undeterred against law school calling it“pointless financial suicide.” It’s worth sharing with anyone who despite all contrary evidence still contemplates law school. Surely, that would confirm the exception that proves the fool.

These days, there aren’t as many scambloggers as before. This is largely a function of there being only so much spleen to vent. Eventually, even anger comes to something resembling an end. Still others believe the work of the coal miner’s canary has mostly been done. And in any event, the law school industrial complex no longer escapes scrutiny or accountability. Indeed, I’m hard pressed to believe there are many college students left who despite a belief in their special snowflake status, haven’t heard the alarms about choosing law as a respectably remunerative career.

The second lawyer riffing a similar melody authored a pointed commentary in The Minneapolis Star Tribune. Attorney turned business analyst Bob Larson underscores that while the scamblogging movement might only be simmering now, the angry and embittered remain.

Larson like Waechter no longer practices law. His heartfelt opinion piece is likewise worth reading. He wrote it in response to receiving repeated alumni fundraising appeals from his law school. Entitled, Law school fundraising: Solicitations will be bitterly denied,” the subhead asks, “What have you ever done for me? And what makes you think you made me wealthy?”

Larson wrote about having received a 50-percent scholarship to attend his law school. All the same, he left law school $170,000 in debt. “It feels like a grave insult every time you request a donation,” he wrote.

At every turn, you’ve done me a disservice. You’ve taken so much from me, and given precious little. My life is worse for having known you. I have paid and will continue to pay for that mistake. But you don’t care; you’re just a bloated glutton, constantly demanding more.

“So, in light of that, I’m sure you’ll understand when I say, “Go to hell, you parasite.”

There’s not much to say after that — except I think they’ll still ask him for money.

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Photo credit: “Animation of a sweep picking played on electric guitar,” by Punkettaro at Wikimedia Commons under Creative Commons Attribution-Share Alike 3.0 Unported license.

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Rodolfo Guzmán Huerta El Santo, leyendo... | by Manuel Chávez R.

I’ve been asked why I don’t blog about one of the hot button topics of the day like, for instances, the past notorious murder cases of Casey Anthony, Jodi Arias or Steven Avery. There are lots of reasons, I reply, not the least being that I’m not a criminal defense lawyer. Without investing time and study, it’s harder to weigh in on the nuances and strategies of an unfamiliar practice area.

That’s not to say, of course, that I haven’t sometimes borrowed a page from Oscar Wilde and opined anyway. Wilde famously observed, “I love to talk about nothing. It’s the only thing I know anything about.”

The better reason is a more practical one. Unless I take up the habits of a paid blogger I once read about — who has the time to keep up? No wonder the parenthetical quote in Anand Giridharadas‘ April 15th New York Times Book Review rang so true for me. Giriharadas wrote, “A boss of mine once said, of an article I had drafted over several months, that I had done a terrific job of catching myself up to a conversation the world had been having without me.”

I don’t recall much about that book review — except for that quote. By the time I get around to posting about a hot topic, the conversation the world has been having will have indeed ended without me.

Nap Time 8Just the same, what I most remember about that paid blogger is that he claimed to have so many blogging ideas, it was costing him sleep. During the night, his fertile brain would intermittently jolt him awake with creative inspiration. He’d then immediately jot down the ideas on the laptop kept conveniently on his nightstand. The tale, tall or not, unfortunately failed to mention what his wife thought about his many nocturnal mental emissions.

My skepticism about this guy’s supposed excess creative juices led me to speculate on other causes. His interrupted sleep was the result of (A) a self-denying work ethic; (B) an overriding devotion to making a buck; (C) an enlarged prostate; or (D) undiagnosed sleep apnea. I went with (B). Unlike those of us who make no money from web logs, it’s more than likely a paid blogging gig will produce income induced insomnia.

Pragmatically speaking, then, without such blogging pecuniary inducement it’s hard to keep up with events. Too often they overtake opportunities to timely blog. Had I the self-discipline to reduce my ruminations to 140 characters on Twitter, I guess my commentaries could have more immediacy just like the tweets of a certain carrot-colored presumptive presidential nominee. But 140 characters?

Nun Disaproval | by AlishaVLast year, a lawyer who never lets facts get in the way of opinion griped, “You don’t respect my time — if you expect me to read all that,” this after I sent him facts. Foolish me. He’s right. Hell, a nun in parochial school once accused me of “diarrhea of the pen”  — no doubt for disrespecting her time.

The bottom line is I don’t have the paid blogger’s remunerative incentives or the surplus shuteye to look for more sleep deprivation. As it is, I guard my 5 hours or so of overnight sack time. And besides I get enough ideas during waking hours without having to fish for them at night.

And with that, here’s another Free CLE update. The usual disclaimers apply about continued availability, content and jurisdictional creditworthiness.

FREE CLE

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Veritext Legal Solutions

Continuing Legal Education

CLE Webinar Schedule at:

http://www.veritext.com/cle/

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National Consumer Law Center

Financial Frauds and Scams Against Elders: Government Responses and Resources
06-15-2016 2:00 pm (EST)
Categories:  National Elder Rights Training Project | Consumer Fraud & Scams

Past Webinars Archive at: http://www.nclc.org/eventbooking

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Thompson Coburn LLP

[Webinar] Ethics and Cybersecurity – June 29th, 12pm CDT

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Photo Credits: “Rodolfo Guzmán Huerta El Santo, leyendo…” by Manuel Chávez R at Flickr Creative Commons Attribution; “Nun disapproval,” by Alisha Vargas at Flickr Creative Commons Attribution.

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Rod Serling - Twilight Zone Button | by TobyotterMay 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 Lawlike 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.

laughing seinfeld evil newman laughThe 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?

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Credits: “Rod Serling – Twilight Zone button,” by Tony Alter at Flickr Creative Commons Attribution.

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