Archive for the ‘Your friendly state bar.’ Category


West of Phoenix on Friday, an emu was loose on the interstate. Fortunately for the wingless relation of the ostrich, thanks to a state agricultural official’s lasso, troopers were able to corral the gregarious ratite without injury to bird or motorists.

Coincidentally, the same day something else was loose at the State Bar of Arizona —- folly. But unfortunately for lawyers forced to join to earn a lawyer’s living, there was no lassoing the Bar’s latest imprudent expenditure of mandatory member monies.

https://i0.wp.com/i2.cdn.turner.com/cnnnext/dam/assets/161022000320-az-emu-1-exlarge-169.jpgBy a vote of 15 to 4, the Arizona Bar’s board of governors kowtowed to the glib nostrums of the Bar CEO and especially, the vehement urgings of its immediate past president. Exhorted to vote in favor so the expenditure could be included in the 2017 budget, the latter further warned “the train had left the station” if they didn’t approve a new online lawyer referral platform masquerading as a “Public Service Center.” 

Forget the reference to the 19th century technology locomotive out of the same mouth extolling a supposed innovation. And ignore the inconvenient fact the new program preserves the status quo. The Bar remains atavistic middleman preserving its self-governance privilege to protect — not disrupt its economic cartel.

The proposal was ramrodded through with the understanding that specific details and funding could be modified after the proposal was further studied and submitted to the membership for their comments. Good luck unringing that bell.

So much for due diligence. Act in haste, repent at leisure, especially when it’s not your money.

Don’t call it uberization.


The online lawyer referral was demoed by the third-party provider, “Legal Services Link, LLC,” who touted it as in step with the uberization of services to consumers. That’s rich since it’s lawyers and their guilds who keep “fighting uberization of the law.”  Moreover, as presented, the technology neither disrupts the market or lowers consumer costs. What it does do is expand the Bar’s bureaucracy, grow overhead, and ultimately increase member costs with no choice but to pony up.

Ironically, this online lawyer referral platform a.k.a the Public Service Center is being sold as a way to purportedly enhance “access to justice” by supposedly making it easier for the public to hire lawyers and secondarily, for the indigent to find pro bono legal help. The Bar CEO even proclaimed the platform would provide a safe harbor for lawyers and consumers. Of course when pressed, the third-party provider and the CEO both walked back that breathtaking assurance by disclaiming any liability — as though lawyer users would expect a modicum of disciplinary liability cover or consumers would be assured of always competent, ethical legal services.

No, the $300,000 Center allegedly helps fulfill the latest state supreme court-ordered iteration of the Bar’s mission. The new mission effective 1/1/17 includes “enhancing the administration of and access to justice.” In truth, though, this expensive new initiative does more to promote ‘access to lawyers’ than ‘access to justice.’

And save for allowing the poor with Internet access to post their legal needs, I don’t know how the platform will “move the dial on pro bono” as the CEO pronounced. Who’s kidding who? How exactly does it “increase and incentivize pro bono” as he also proclaimed? Hold your breath for details.

Persons seeking legal assistance complete an online form stating their legal needs to create a “legal project.” This enables Arizona lawyer participants to review the paid or pro bono project. If interested, they then disclose their profiles, fees (if applicable) and other relevant information to the would-be client.

The Bar thinks its online referral platform will generate $120,000 in revenues to help defray the $300,000 annual hit to its budget. This must mean that in addition to paying for it with existing mandatory membership funds, the Bar plans on charging participants an additional fee.

Fear and loathing.

I attended the board meeting to inform myself and to comment as warranted. But in a testament to the bar’s continued opacity and its abiding aversion to dissent, the board president allowed just two minutes of public comment before not after the proposal was presented. Is there any wonder there’s so much fear and loathing of the Bar?

A representative of the local county voluntary bar association was given the same short shrift to comment without any proposal details in advance. Understandably, the local county association is concerned since it runs its own lawyer referral service, which now appears under threat from the Bar’s competing program.

Board members discover fire.

As a side note, I was surprised some board members appeared so impressed by the third-party presentation. You’d have thought they’d just witnessed the discovery of fire. Unless you’ve been living under a rock, the digital marketplace has been offering similar consumer to lawyer matching services for sometime.

As a matter of fact, one wonders why the Bar apparently singled-sourced a provider instead of making requests for proposals. Other competing providers include, for example, Axiom, LawDingo, Lawyer.com, Legal Match, UpCounsel, LegalZoom, and RocketLawyer. The latter even had a short-lived pilot partnership with the ABA until all hell broke loose from protectionist forces.

And as a final side note, it was just a few years ago that the Bar invested significant sums of member monies to upgrade its website and online “Find a Lawyer” directory. Now it means to replace its online member directory via a third-party provider. So much for the return on that earlier investment.

And interestingly but hardly surprising was the added disclosure that the Public Service Center and its two new employees will be part of the Bar’s government affairs group. This is the legislative advocacy department that monitors the Bar’s legislative priorities. This makes perfect sense, given the comments of several board members.

It’s fair to say the Public Service Center is primarily a public relations gambit — a tool intended to serve and protect the Bar’s bureaucratic hide from further threatened reforms from the state legislature. As one board member put it, the Public Service Center will enable the Bar to trumpet to the legislature how much ‘good’ it’s doing for the public.

Despite that, the conflicted regulator/trade association Bar will nevertheless face a challenge. How will it square a trade association lawyer referral “access to justice” service generating business for lawyers with any regulatory semblance of public protection?

Portland Urban Iditarod | by Misserion

Misserion via Flickr attribution license


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https://openclipart.org/image/2400px/svg_to_png/6815/SteveLambert-Jamie-O-Shea-Reaching.pngAfter kicking the can around for 3 years, the State Bar of Arizona finally submitted a petition to the state supreme court that no one besides Bar insiders was asking for.

The Bar wants to amend the Oath of Admission to the Bar and the Lawyer’s Creed of Professionalism. The petition has been circulated for public comments due back October 28, 2016.

Since rule changes occur mostly under-the-radar without fanfare, revisions to the oath and creed will probably go into effect with few discouraging words.

Why the Arizona Bar felt the need to amend the oath and creed is a good question. The stated reason was a desire “to harmonize” the oath with the Arizona Loyalty Oath of Office and with a supreme court rule. As for the creed, the Bar said the proposed changes “reflect additional areas of emphasis as the result of practical experience since the creed was originally adopted.”

For the record, Arizona’s lawyer creed was adopted May 19, 1989. It’s already been amended twice, including September 19, 2003 and May 20, 2005. This latest petition will make 3 amendments.

I don’t know how many other states have enacted let alone so frequently amended their own lawyer creeds meant ostensibly to legislate professionalism and civility for a stubbornly adversarial profession.

Over 30 years ago such creeds became all the rage. State bars around the country imposed these creeds in a daunting attempt to stem the public’s falling respect for lawyers. You tell me if it’s worked. A 2014 Princeton University study found lawyers continue to rank below nearly every other profession and occupation in trustworthiness.

hug yourselfBut whether something works or not is of little import to bureaucrats invested in telling the rest of us how to act and think. Rules and systems change. Initiatives are implemented. Programs are rolled out. But little is done after to quantifiably measure or objectively evaluate whether goals are met or programs succeed. But if feel-good bromides be the music of success, then play on. Nothing tops the self-congratulation of non-achievement.

And something else you can always count on is for bureaucracies to overreach their authority. So ‘aye, there’s the rub’ with this petition. It tinkers, tampers and trespasses on public interests and lawyer rights.

I won’t get into all the objections but highlight the principal ones as follows:

Courtroom 32One proposed change to the oath adds “and laws” to “I, (state your name), do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona.”

Article 6 Section 26 – Oath of office of the Arizona Constitution states judges must support the Constitution of the United States and of Arizona — but does not mention “laws.” Arguably, this is because judges sometimes overturn laws and therefore ought not be so proscribed by an Oath of Office. Relatedly, lawyers sometimes challenge certain laws as facially unconstitutional or unconstitutional as-applied. Indeed, in those circumstances lawyers argue such unconstitutional laws should not be obeyed. Consequently, lawyers, too, should not be required to swear an oath to “laws” they don’t believe are constitutional.

The petition also exchanges “unprofessional” conduct for “offensive” conduct in the creed. The proposed new language goes beyond what the court already defines as “unprofessional” conduct in ER 8.4. Misconduct.

This hints at a hidden agenda. It morphs into a brand new mandate ER 8.4’s ethical proscriptions against bias and prejudice that are actually “prejudicial to the administration of justice” and that adversely affect fitness to practice or seriously interfere with the proper and efficient operation of the judicial system. The new requirement instead goes beyond settled rule intent and interpretation. In truth, it’s an entirely new departure intruding on lawyers’ professional autonomy, freedom of speech, and freedom of association. As a consequence, it subjects lawyers to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system.


Dredd Scott  via Wikipedia Commons, public domain

And last, the addition of “and respectful to” to no. 11 of the creed, “I will at all times be candid with, and respectful to, the tribunal” seems to place respect to the tribunal over duty to the client or justice. As a colleague recently wrote to me after citing instances where tribunals were sorely wrong from Buck v. Bell to Dred Scott v. Sandford to Plessy v. Ferguson to Korematsu v. United States, “Lawyers have to not be afraid to criticize the government, judges and prosecutors when they are abusing their powers as well. We cannot fear discipline because we spoke truth to power.”

Absent a prejudicial effect on the administration of justice, you expect lawyers to retain free speech rights even when engaging in professional activities and especially life activities outside the practice of law. But efforts to broaden and censure lawyer speech and conduct when the prohibited speech and conduct do not have a prejudicial effect on the administration of justice threaten those rights. They raise serious First Amendment issues subject to constitutional challenge.

Not to mention that the words “and respectful to” are also void for vagueness since they are undefined. Due process requires that an enactment is void for vagueness if what it prohibits is not clearly defined. Worse yet, these words would operate to chill the exercise of First Amendment freedoms by preempting and even muzzling speech and conduct lest boundaries not clearly marked are crossed.

And even more worrisome is the probability that arbitrary and discriminatory enforcement will follow without explicit standards for those who apply them. As it is, lawyers here already opine the Arizona Bar enforces its ethical rules on an ad hoc and subjective basis. Vague terms like these only serve to compound these opinions. And they heighten attendant apprehensions of continued arbitrary and discriminatory application.

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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.


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.


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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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.”


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.


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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In April, the Nevada State Bar’s Board of Governors blast emailed members a third-party confidential survey asking for their “opinion on the CLE and annual license fee exemptions currently offered to members older than 70.” The survey is apparently driven by proponents who want to eliminate that age exemption. Others want it left in place. Will the survey decide the matter? I rather doubt it. In any case, the results are supposed to be published online and/or in the Nevada Bar’s magazine.

Currently, there are 412 Nevada lawyers age 70 or older actively practicing. But those silver legal eagles better start worrying. Once the age exemption is eliminated, those 412 lawyers, representing less than 5% of Nevada’s 8,818 active lawyers, will each sustain about $1,000 in new higher annual costs to practice.


Base annual dues in Nevada are presently $450. In addition, there’s a separate yearly $40 paid to the Nevada CLE Board. This amounts to $490 in total mandatory annual fees. And with the average cost of an hour’s worth of Bar CLE at about $45 multiplied by a mandated 12 annual CLE hours — tack on another $540 to the annual tariff. Wine may improve with age — but not it seems the bottom line for Nevada’s older lawyers.

As far as the Bar’s concerned, however, the news would be positive. Assuming the 412 septuagenarian lawyers satisfy their CLE requirements through the Bar, the projected fiscal impact for the Nevada Bar will to the sunny side of potentially over $400,000 in higher annual revenues based on the infusion of new dues-payers and CLE potentially totaling $1030 in fees X 412 active senior Nevada attorneys.

Right now, millenials outnumber the 75.4 million Baby Boomers in the U.S. But the bad news for those 18 to 34 year olds is that many Boomers aren’t retiring. So as Baby Boomers, including lawyers, continue working past retirement age, it’s not surprising that mandatory bars are trending toward revoking senior lawyer age exemptions. After all, the bureaucratic maw must be fed. As Oscar Wilde said, ‘the bureaucracy expands to meet the needs of the expanding bureaucracy.’

Holidays 496Some mandatory bars like the State Bar of Arizona eliminated their age exemptions years ago. As a matter of fact, in the Grand Canyon state, aging lawyers who take retirement status still pay bar dues. The only way to stop paying is to resign in good standing or to rest in peace beneath the ground. And in Texas, on April 28, 2015, the Texas Supreme Court amended its Bar Rules to eliminate its longstanding MCLE exemption for so-called emeritus attorneys, those aged 70-years and up.

Understandably, it’s a bit unseemly to ascribe money grasping reasons to these moves. So look instead for overused policy dodges dressed up in public protection apparel to justify eliminating the age exemptions. Doddering dinosaur lawyers who fail to keep abreast of the law may pose risks to consumers is how the argument goes. But unfortunately for proponents, there’s never been proof or any empirical evidence that continuing legal education makes lawyers of any age more competent, professional or ethical.

https://upload.wikimedia.org/wikipedia/commons/thumb/3/33/A_jolly_dog.png/163px-A_jolly_dog.pngIt seems “Wisdom doesn’t automatically come with old age,” according to the late Abigail Van Buren. “Nothing does – except wrinkles. It’s true, some wines improve with age. But only if the grapes were good in the first place.”

Finally, paraphrasing Francis Bacon, “Age appears to be best in four things; old wood best to burn, old wine to drink, old friends to trust,” — and for mandatory state bars, old lawyers to tax.



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Credits: “Men of the Day No. 732: Caricature of Mr James Lennox Hannay. Caption read “Marlborough Street” by Spy in Vanity Fair, 22 December 1898, via Wikimedia Commons, public domain;”Am richtigen Fleck. Signiert. Öl auf Leinwand” via Wikimedia Commons, public domain; “A jolly dog,” by Currier & Ives, via Wikimedia Commons, public domain.

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Rich Life 3

  1. It fails to tell its members where their money goes. The Bar does not provide members a detailed accounting of its annual expenditures, let alone a yearly income statement and balance sheet. In addition, the Bar uses unexplained indirect cost allocations to account for overhead and administrative costs. Moreover, these partial allocations appear to be based on undocumented time estimates unrelated to measurable factors. Indeed, in the Bar’s “2015 Annual Report,” the Bar states that in 2015 it generated CLE revenues of $2,059,801 against expenses of $1,925,940. This translates into a mystifying expense-to-sales ratio of approximately 94%. Were these allocated expenses reasonably linked to a level of service or benefit received? Without transparency, it’s anybody’s guess whether the Bar’s indirect cost allocations are reasonable, equitable, real and current — or whether they even represent acceptable means for apportioning costs;

                        As clear as mud.

  1. It fails to disclose how much it spends on lawyer regulation and how much it spends on non-regulation. Of the approximate one-third of its annual budget spent on lawyer regulation and discipline, the Bar provides no expense detail, particularly about the number of discipline-related professional staff or how much they are paid;

People 1055

  1. It fails to disclose how much it spends annually on political and ideological activities, including bar relations related to promoting the interests of special interest lawyers; support services for voluntary, politically active bar associations; public relations and advocacy activities in support of merit selection; administrative and financial support of social programs having ideological content as well as political advocacy Bar leadership training; lobbying and expenses paid of the Board of Governors and other administrative expenses for carrying out the Bar’s political and ideological activities as well as all expense reimbursements and funds paid to outside contracted lobbyists. Also undisclosed are the actual work hours expended lobbying and giving lawmaking advice to the Legislature by its two executive employees who are also state-registered lobbyists: the Bar’s CEO/Executive Director and the Bar’s Chief Communications Officer;

Mirrors 84

  1. It fails to timely and completely disclose the annual compensation paid to all management, including all top executives – – not just “key employees” as defined and required under IRS Form 990 “reportable compensation” mandates;
  1. It fails to widely, and prospectively disclose periodic Supreme Court Rules Petitions it files and which often increase member disciplinary exposure or otherwise adversely affect their interests, including, for example, recent ethical rule requirements for succession planning and more recently, a Petition to Amend the Oath of Admission to the Bar & Lawyer’s Creed of Professionalism;

People 4609

  1. It fails to disclose to lawyer participants beforehand, its ‘unwritten’ voluntary Fee Arbitration Program “50% rule.” The Fee Arbitration Program is designed to resolve fee disputes between Arizona attorneys and their clients. But under the “50% rule,” if the fee arbitrator awards more than 50% of the fees returned to the client, the award is automatically referred to the Lawyer Regulation Office for lawyer disciplinary investigation. This rule is not found anywhere in the Rules of Arbitration of Fee Disputes or is it publicly divulged to members. The rule is instead invoked in practice and as an unwelcome ‘surprise’ if the parties do not settle;

Gas Station 14

  1. It fails to detail its longstanding nonperformance in committing, measuring, recruiting, training, and managing organizational workplace race, ethnicity, gender and disabilities diversity within its own employee organization, especially the historic lack of race and ethnic diversity among top management;
  1. It fails to disclose the number of outside consultants and contractors it hires; how they are hired; and how much each is paid. The Bar does not make those consulting and independent contractor agreements available for public inspection;

Babies 255

  1. It fails to adequately explain and disclose its internal process and ‘carefully tailored’ procedures to determine itself “Keller-pure,” including activities it engages in unrelated to its core functions of regulating the legal profession to improve the quality of legal services;
  1. It fails to disclose in any detail its formula for benchmarking executive compensation and organizational size, operations and service. Not long ago, Arizona was No. 1 among mandatory bars with a member-to-professional staff ratio of 158 to 1;
  1. It fails to disclose and identify the financial contributions, including gifts-in-kind, made with mandatory member assessments and which are annually disbursed to various special interest voluntary bar associations;

Children 1402

  1. It fails to make open and available its member-funded channels of communication to give fair and equal time to opposing arguments and viewpoints on controversial issues and concerns like the merits of a voluntary state bar. Instead it repeatedly mischaracterizes and misrepresents the views of voluntary bar proponents.


* Obviously, there are more than 12 including the Bar’s machinations to pass its last mandatory dues increase and its continued conflation without empirical proofs of enhanced lawyer competencies through its Bar-sponsored continuing legal education programs — but for now, these are a modest start.

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Sure I thought it was grand the California State Auditor again stepped on the State Bar of California last week. My praise, though, is restrained. The California Bar has sustained plenty of hits and fault-finding the past 30 years.1 And still it has resisted genuine reforms. Apart from that, the Cal Bar getting stomped on is such old hat that even the beaver and muskrat’s come off.

Indeed, just last June the state auditor alleged the Cal Bar may have put the public at risk by going soft on discipline by rushing settlements to reduce a festering 5,000+ lawyer disciplinary case backlog. The auditor also berated the Bar for going $50 million over-budget on a building renovation. In sum, the report declared the Cal Bar “has not consistently protected the public through its attorney discipline process and lacks accountability.”

On the heels of that, last July I criticized the Arizona Supreme Court’s on State Bar Mission and Governance for inexplicably consulting the California Bar about its governance reforms — as though the Cal Bar’s done such a good job of that. “That’s like asking Kim Kardashian about modesty or Donald Trump about hairdos,” I quipped.

Today, I still wonder, ‘What’s next?’ Consult Trump on Hispanic outreach?

State audit rips Cal Bar.

Calif State Auditor May 12 2016 Cover Letter Re. State Bar of California Audit Report

The 62-page audit report concerning the Cal Bar’s financial operations and management practices was released last Thursday. It decried the Bar’s lack of transparency, the excessive salaries paid its executives and its massive budget shortfall to repay victims of attorney misconduct. When I saw the headlines about non-transparency and inflated executive compensation, for a moment I thought the story was about the State Bar of Arizona.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/df/Opie_Read_in_the_Ozarks%2C_including_many_of_the_rich%2C_rare%2C_quaint%2C_eccentric%2C_ignorant_and_superstitious_sayings_of_the_natives_of_Missouri_and_Arkansaw_%281905%29_%2814766331541%29.jpg/240px-thumbnail.jpgBut no, it was the California Bar. Also see “Audit rips California’s state bar for shady finances and bloated salaries.”

About those so-called inflated salaries, the auditor recommended that “to ensure that the compensation it provides its executives is reasonable, the State Bar should include in the comprehensive salary and benefits study it plans to complete by October 2016 the data for salaries and benefits for comparable positions in the state government’s executive branch.” 

According to Table 8 of the auditor’s report, the Bar’s Executive Director earns $267,500 per year while the Governor of California makes $182,784 annually. At 146% of what the governor makes, the value of presiding over the world’s 8th largest economy clearly pales in comparison to running the nation’s largest bar association. Meanwhile, at 18,250 active members, the State Bar of Arizona is one-tenth the size of the Cal Bar’s 186, 346 active members. And at $65M, the Cal Bar’s budget is more than 4 times the size of Arizona’s. All the same, the Arizona Bar’s Executive Director also makes more than the California Governor.

Sunshine | by nateOne

Several months ago, a local Arizona Bar apologist took exception to my comparing the Arizona Bar Executive Director’s annual compensation with that of Arizona’s Governor. He told me comparing the executive director’s salary with Arizona government employees was “meaningless.” Arizona state employees are “underpaid,” he scolded. And in any case, the governor gets a lot of non-salary perks. If you look at the table below obtained via Ballotpedia, he’s right. The Arizona Governor is indeed underpaid along with everyone else in state government — not just the executive branch.

State executive officials
Office and current official Salary
Governor of Arizona Doug Ducey $95,000
Arizona Secretary of State Michele Reagan $70,000
Attorney General of Arizona Mark Brnovich $90,000
Arizona Treasurer Jeff DeWit $70,000

A Bed | by CarbonNYC [in SF!]Just the same, the Cal auditor’s advice remains sound, to ensure reasonableness, “the data for salaries and benefits for comparable positions in the state government’s executive branch” ought to be included in any state bar salary review.

Per the federally mandated IRS Form 990 disclosures on the State Bar of Arizona’s website, the most recently available 2014 IRS Form 990 reveals the Arizona Bar’s Executive Director makes 2 times the Arizona governor’s salary. The data, though, is two years old. As a matter of fact, buried in the May 2016 issue of the bar’s monthly magazine, was a brief mention that in February the Board unanimously approved the Executive Compensation Committee’s recommendation to give the Executive Director another raise.

What it all means for transparency.

The real implications from the Cal audit report are what they mean for transparency. The legal establishment isn’t known for transparency — their disingenuous exhortations notwithstanding. That’s why I believe transparency suffers where public records access and disclosure mandates aren’t overseen by independent non-legal establishment third parties.

In Texas, for example, the Texas State Bar discloses a lot. Admittedly, that’s not necessarily because it wants to — but because it has to. The Texas Bar is subject to State Sunset Law review of its mission, continued viability, fiscal management and performance by the Texas Sunset Commission. This review by legislators and public members is required by the Texas Sunset Act.

Open Kimono Management | by standardpixelYears ago, Arizona had a Sunset Law that likewise applied to the State Bar of Arizona. But that ended in 1985 when the State Bar Act sunsetted over a dispute between the Bar and the Arizona Legislature and before the State Bar could or would open its management and financial kimono. So when the Texas Bar opens its books, it does so not as much by choice but as by statute.

The California Bar must likewise open its financial operations and management practices not by dint of munificence for open government but as required by the State Bar Act under Business and Professions Code §6145.

The lesson in Arizona, then, is that to ensure free and open governance and preserve the public’s unfettered access to financial and management information, the State Bar of Arizona needs to be treated like every other state regulator. This means being subject to Arizona Public Records Law, A.R.S. §§ 39-101 to -161 not Arizona Supreme Court Rule 123.

Gustaf Dalén 1926.jpgAlthough Arizona Courts meet the plain meaning of a “public body” supported by state monies, the high court has deemed that Arizona courts are not subject to Arizona’s public records laws. Instead, the Court says it alone under its own Rule 123 constitutionally dictates the breadth of what governs the maintenance and disclosure of its records.2

Not that the Arizona Supreme Court is alone in that thinking. In 2009, the Washington State Supreme Court expanded on that view in City of Federal Way v. Koenig. And in 2013, the Nevada Supreme Court followed in the same general direction in Civil Rights for Seniors, v. Administrative Office of the Courts.

Under Arizona public records law, most documents in a public officer’s possession are public records — except for documents that relate solely to personal matters with no relation to official duties. Rule 123(e), on the other hand, restricts access to certain administrative records including employee records, judicial case assignments, and what it alone determines is attorney and judicial work product. Ariz. R. Sup.Ct. 123(e)(1)(11)

The State Bar Mission and Governance task force has proposed the Arizona Bar not fall under Arizona Public Records Law. Rather it recommends the Bar “conduct meetings and maintain records pursuant to public access policies adopted by the Supreme Court.” How much transparency will that entail? What judicial records does the Bar create that have relation to Rule 123?

And besides, as I recently posted, the Arizona Bar already thinks “our organization has worked to be exceptionally transparent.”


1 For more Golden State Bar dysfunction, see “California State Bar in Turmoil After Shake-up Triggers Whistleblower Claim.”

2 In Arpaio v. Davis, the Court of Appeals explained:

“Arizona’s constitution provides that “[t]he Supreme Court shall have administrative supervision over all the courts of the State.” Ariz. Const., art. 6, § 3. This administrative power “is a function of its responsibility to administer an integrated judiciary.” Scheehle v. Justices of the Ariz. Supreme Court, 211 Ariz. 282, 289, ¶ 27, 120 P.3d 1092, 1100 (2005). The Supreme Court fulfills its administrative responsibilities by promulgating rules. Id. at ¶ 23, 120 P.3d at 1099. “Such rules are valid even if they are not completely cohesive with related legislation, so long as they are an appropriate exercise of the court’s constitutional authority.” Id. at ¶ 24, 120 P.3d at 1099. Accordingly, Rule 123—not the Arizona Public Records Law—controls requests for judicial records.”

Credits: Portrait of Bartłomiej Sztosik,Creator:Henryk Grombecki, at Wikimedia Commons, public domain; Opie Read in the Ozarks, by Opie Percival, Library of Congress via Wikimedia Commons, public domain; Sunshine, by Nate Grigg at Flickr Creative Commons Attribution; A Bed, by David Goehring at Flickr Creative Commons Attribution; Two women wearing funny glasses . . . ., by Yuko Honda at Wikimedia Commons, Creative Commons Attribution-Share Alike 2.0 Generic License; Open Kimono, by Eric Gélinas at Flickr Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic license; Gustaf Dalén, Wikimedia Commons, public domain.

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