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Archive for the ‘Your friendly state bar.’ Category

In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

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Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

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History was made today in California. Governor Jerry Brown signed Senate Bill 36, unprecedented legislation that required painstaking effort the past two years to realize. Bar reform failed in 2016 but this time was different. The legislation sailed through both legislative chambers.

SB 36 increases the California State Bar’s focus on its core regulatory functions — public protection, admissions, licensing and lawyer discipline. It accomplishes this by requiring the California Bar to transfer its 16 specialty sections (with more than 60,000 members) and the California Young Lawyers Association (with its 48,000 members) to create what becomes the nation’s second largest voluntary association of lawyers after the American Bar Association.

The functions and activities of the existing Sections will become a part of a new private, non-profit corporate entity, defined as the Association. The Association will be governed by a board of directors selected by the individual sections themselves. It is not part of the State Bar. Moreover, the Association is prohibited from being funded by membership fees and is not considered a state, local, or other public body for any purpose.

Membership in the new organization is strictly voluntary. It will receive no funding from the State Bar’s mandatory membership fees – though members will have the convenience of continuing their Section membership as the Section dues check-off will remain on the State Bar dues statements.

Focus on public protection

Under the new law, the implementation process begins January 1, 2018. The current 19-member State Bar governing board will transition to a 13-member board with a maximum of 6 non-lawyer public board members. Unlike the current State Bar Act that required the board to elect or select the president and vice president, the new law requires the California Supreme Court to appoint a chair and vice chair. The State Bar is also required to adhere to a Supreme Court-approved policy to identify and address any proposed board decisions that trigger antitrust concerns. Read the entire bill text here.

Two-headed Bar

Meanwhile back in the Arizona desert, similar legislative efforts to carve out the regulatory from the non-regulatory functions of the Arizona Bar continue road-blocked. Arizona Bar bureaucrats and entrenched establishment interests have strenuously fought any proposed bar reform legislation. More recently, the Bar opposed a rule petition that would have split the functions of the Arizona Bar into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”).

In Arizona — and what will soon no longer be the case in California — the Arizona Bar has two heads. It acts as both regulator protecting the public from unethical lawyers — while at the same time acting as the trade association looking out for the interests of lawyers. This creates a conflict of interest. The interests of the public and the interests of lawyers are not the same.

In California, the Sections had for decades been a part of the regulatory umbrella of the State Bar. During that time the Sections worked on behalf of lawyer interests providing them trade association-like benefits and services.

But unlike Arizona and other reform-resistant jurisdictions like Washington and Wisconsin, the separation of regulatory from non-regulatory functions was finally accomplished only through collective effort. The bill signed by California’s governor today came about through collaboration by the legislature, the State Bar, the Supreme Court’s Chief Justice, the Sections and other stakeholders working together to make history.

Only time will tell whether California’s hard-fought success now helps to put two-headed bars in other states not just on notice —  but on the block.

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https://upload.wikimedia.org/wikipedia/commons/thumb/1/17/Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpg/339px-Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpgFree speech and free association relief for lawyers may be on the way. The nation’s highest court agreed this week to hear Janus v American Federation of State, County and Municipal Employees (AFSCME), a case that revisits the issue raised last year by Friedrichs v. California Teachers Associattion, “Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.”

Friedrichs unfortunately was left undecided. On the untimely death of Justice Antonin Scalia, the court split 4-4 and the lower court ruling was undisturbed.

Had the U.S. Supreme Court ruled for public school teacher Rebecca Friedrichs, her First Amendment rights would have been vindicated — and potentially so too the rights of the nation’s lawyers.

Indeed, in the words of 21 former Presidents of the District of Columbia Bar, it “would have a profoundly destabilizing impact on bars all over the country.”  Why? Because overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) would also have meant cutting loose the funding gravy train for mandatory bar bureaucrats. See “SCOTUS Ruling Leaves Keller Alone—for Now.”

Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Under Keller, lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes not all members agree with.

Janus v. AFSCME

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Mark Janus is a public sector employee who on First Amendment grounds objected to paying money for union collective bargaining and contract administration activities he did not support. The Seventh Circuit held that Janus’ claims were barred solely because of Abood. See “Supreme Court poised to deal a sharp blow to unions for teachers and public employees.”

Writing at The Supreme Court’s Next Big Union Fight: Six Key Questions,” lawyer journalist Marcia Coyle opined about the impact on bar associations, “And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars . . . integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California.” Justice Neil M. Gorsuch is expected to provide the fifth vote to overrule Abood and end the collection of agency fees by public employee unions.

Go along to get along

https://upload.wikimedia.org/wikipedia/commons/7/74/Agnes_Karikaturen_Vorwaerts.jpgTo earn a living in their chosen profession, lawyers are forced to go along to get along with an untold number of Constitutional impingements. Lawyers, for example, are subjected to freedom of speech and freedom of association restrictions not ordinarily applied to others. For example, notwithstanding that judges are government officials subject to the “uninhibited, robust and wide-open” core political speech constitutional standards under New York Times Co. v Sullivan, lawyers are nevertheless punished for remarks deemed disparaging about the judiciary.

Moreover, in violation of the First Amendment right of free association, law firms are prohibited from obtaining outside investments. And rather than ask lawyers to opt in to political spending, mandatory bars require members to actively object to the cavalier presumption that lawyers condone the use of their mandatory monies to fund political speech they disagree with. And in perhaps the greatest pirouette of the First Amendment, in 32 states lawyers are forced to join a bar association to practice law.

Sui generis?

https://upload.wikimedia.org/wikipedia/commons/2/28/Lula-WIKI.pngIt’s common to require members of professions and occupations to pay an annual fee used to regulate and enforce a licensing system. But it’s quite something else to disingenuously assert lawyers are a breed apart — sui generis special snowflakes that while professing to be aspirational guardians of the law protecting individual rights are nevertheless supposed to tolerate infringements of their own rights.

In truth, the only thing unique about lawyers is how unlike other professions and occupations, lawyers countenance compulsory organizational membership and the imposition of fees for non-regulatory purposes merely for the ‘privilege’ of earning a living.

Fortunately, not all lawyers put up with these constitutional infringements with timid or stoic forebearance. In Wisconsin, for example, lawyers have fought for almost 40 years against the requirement that dues-paying membership in a state bar organization preconditions licensure. As a matter of fact, those arguments even predate the Second World War.

In 2013, lawyers brought about changes in Nebraska when the state supreme court continued its bar as a mandatory but ordered that mandatory dues could only be used for regulatory purposes. As for non-regulatory activities, only voluntary funds could be used. This approach subsequently inspired legislation in Arizona and it tracks with legislation just passed overwhelmingly in California.

https://upload.wikimedia.org/wikipedia/en/thumb/f/fb/Blacksmith_icon_symbol_-_hammer_and_anvil.jpg/252px-Blacksmith_icon_symbol_-_hammer_and_anvil.jpgCalifornia’s Bar is an outlier in finally opting to stop fighting reforms. More typical are mandatory bars like Arizona’s and Wisconsin’s that fight lawyer emancipation from forced membership and forced funding of their attorney trade associations with hammer and tongs.

Last month, without a word of explanation, the Arizona Supreme Court denied a rule petition opposed by Arizona’s bar that would have separated funding of the bar’s regulatory and non-regulatory functions. And just last week, Wisconsin’s 52-member bar governing board unsurprisingly voted to oppose a petition pending before the Wisconsin Supreme Court that would similarly break up member funding based on mandatory dues to support the bar’s specified regulatory activities and voluntary dues to support all other non-regulatory activities.

Who ever said this was going to be easy? But with Abood overturned — it just might.

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Credits: Squirrel in front of the US Supreme Court, by US Capitol at Wikimedia Commons, public domain; Agnes Karikaturen Vorwaerts, by Agnes Avagyan , Narrabilis at Wikimedia Commons, creative commons share-alike attribution license; Português: Caricatura do presidente Lula. 2005, by Mariano Julio at Wikimedia Commons, creative commons attribution;Blacksmith icon symbol: hammer and anvil, at Wikimedia Commons, creative commons attribution license.

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44 years after apparently being the first state to consider implementing a mandatory malpractice insurance program, the nannies at the Washington State Bar Association (WSBA) are at it again. In an article in the current NW Lawyer, the WSBA governors “recently took up the question of whether requiring malpractice insurance for lawyers as a condition of licensing is an appropriate mechanism to help fulfill the regulatory duty to protect the public.”

Invoking the latest governance-consultant babble, the board held “a generative discussion” on the topic at its May meeting. A decision whether to create a mandatory malpractice insurance task force is set for its September 28-29 meeting.

Ironically, it matters little that the same article mentioned that 85% of Washington private practice lawyers already carry malpractice insurance. Apparently, it’s time to round-up the 15%.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d4/The_Cr%C3%A8che.jpg/320px-The_Cr%C3%A8che.jpgBecause mandatory bar membership weaponizes governing boards to over-regulate and interfere with member personal choice and member financial interest, governors deem their latitudes unbounded. And when they claim guidance from the holy spirit of public protection, they feel empowered with the grace to do almost anything. Moreover, given the Washington Bar’s history, there’s hardly a doubt the WSBA will again ‘make friends’ among its restive members. It will march down the same liberty and property infringing road as its Pacific Northwest predecessors Oregon and Idaho, the only jurisdictions in the U.S. that currently force their lawyers to buy malpractice insurance.

A Scarlet Letter

https://upload.wikimedia.org/wikipedia/commons/thumb/2/2e/The_Scarlet_Letter_%281917%29_1.jpg/302px-The_Scarlet_Letter_%281917%29_1.jpg“Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn’t have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they’ll seek out the insured attorneys, I promise.

“As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there.” – Attorney Susan Cartier Liebel writing at Build a Solo Practice, LLC, “Mandatory Malpractice Insurance Only Hurts Law-Abiding Lawyers”

In 2008, the Virginia State Bar also considered mandating malpractice insurance. According to opponents in addition to the high cost on solos and small firms, “The most troubling aspect of the proposal is the concern that it would allow insurance companies to dictate who gets to practice law. While insurance might be available to lawyers with a poor claims history or a lawyer in a high-risk area of practice, the cost of that insurance might be prohibitive.

“A significant hardship would be imposed on a lawyer who is denied coverage because of a pending disciplinary complaint when ultimately the lawyer is exonerated of wrongdoing. If in the meantime his or her license to practice law is suspended because of an inability to obtain insurance coverage as a result of the pending complaint, the lawyer may suffer irreparable harm.” See “Mandatory Malpractice Insurance—It’s Time To Call The Question”

More recently, a well-heeled Nevada personal injury lawyer opined in an “Open Letter” that in addition to mandatory disclosure, Nevada’s Bar and Supreme Court need to create “a not-for-profit professional liability insurance provider for Nevada attorneys to provide competitive low-cost malpractice insurance for its members.” And if his proposal happens to exclude “some lawyers from practicing in Nevada because they may not be able to obtain malpractice insurance” — so be it.

“. . . if a lawyer’s record is so bad that they are unable to obtain malpractice insurance because the risk is too high for the insurer, is it not better that they are precluded from practicing law in Nevada than putting consumers at risk for their malpractice?” The Nevada Bar’s governing board is currently task forcing the matter. And if Oregon’s Professional Liability Fund is any barometer, don’t look for “competitive low-cost” coverage for Nevada lawyers. This year, Oregon lawyers were each assessed $3,500.00 for less bang-for-the-buck $300,000 per claim and $300,000 aggregate coverage.

Terms of Estrangement

As for Washington, it’s not like its Board of Governors hasn’t already sufficiently estranged itself from its members. In 2015, it inflicted unwelcome competitive pressures on underemployed lawyers by spearheading non-lawyer delivery of legal services by Limited License Legal Technicians. The technicians compete for lawyers’ income-generating work — without the toil and treasure invested by lawyers to obtain a Juris Doctor degree. “Who says you need a law degree to practice law?” So much for lip service paid to the unauthorized practice of law — not when you can pucker those lips around a convenient ‘access-to-justice’ exemption.

And more lately, the Board increased licensing fees from $325 in 2016 to $458. And to further pickle the wound, the Board punctuated the increase by obtaining court sanction to ignore a licensing fee referendum petition signed by 2,180 members that would have rejected the astounding 141% increase.

Evidently, member criticism doesn’t faze WSBA leadership. Despite repeated lawsuits and attempts to rein them in legislatively, the Washington Bar’s tin-eared imperiousness is seemingly boundless. Indeed, their arrogance may even exceed that of the State Bar of Arizona.

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Credits: snugglebunny, by parian, at Flickr Creative Commons attribution; The Crèche, by Albert Anker, Wikimedia Commons, public domain; The Scarlet Letter (1917), Wikimedia Commons, public domain; Sooooooooooooooooooooopa Tramp!!!!!!!!!!!!!!!!, by AndYaDon’tStop, at Flickr Creative Commons attribution.

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Recent news out of Ohio concerning debt-ridden new lawyers underscores the difference between a mandatory membership bar association and a voluntary one. Ohio is one of 18 states where lawyers can practice without being forced to join their trade association.

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpg

In states where lawyers are forced to join a mandatory membership bar association as a precondition to practice, there are bar leaders with heads in the sand who act as though the crashing tides of debt drenching young lawyers were nonexistent.

But in voluntary states like Ohio, bar leaders have at last started examining the “unprecedented burdens faced by new lawyers.” Ten years past the “law school tuition bubble,” they may be a tad late — but in contrast to mandatory bars in Nevada and Arizona — at least they’re now considering potential solutions to the astronomical six-figure debt service new lawyers get along with their diplomas.

Futures Commission.

Tasked with researching and developing long-term solutions and “first action steps,” the Ohio State Bar Association established a 29-member Futures Commission more than one year ago to look at new lawyer burdens and “the need for acquisition of knowledge and the skills necessary to develop and carry on a successful practice; the lack of regulation for new legal service delivery options; and the widening access to justice gap.” In July, the Commission released its preliminary report.

Unlike mandatory bars that too often act below-the-radar through top-down mandates, the Ohio Bar sought input from members through town hall style meetings held in each of its 18 districts and supplemented these with input from its 2017 Leadership Academy class of new lawyers.

In Ohio, bar leaders believe “member satisfaction” is one of their association’s “core values” driving the stated goal of making “membership in the Ohio State Bar Association indispensable to Ohio lawyers.” 

It’s one thing to force lawyers to join an organization in order to earn a living in their chosen profession. But it’s another matter entirely when lawyers choose membership because the value proposition is so strong that membership is “indispensable.”

 

So much debt.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f9/Tin_Woodman.png/105px-Tin_Woodman.pngIt’s not like mandatory bars haven’t heard about the unprecedented tuition debt incurred by today’s young lawyers. More likely, they can’t relate to it. Many graduated from law school when women had big hair to the skies and fashion meant shoulder pads, parachute pants and Members Only jackets. Tuition then was a fraction of today’s troubles. Unsurprisingly, these bar leaders are tin-eared about the problem.

According to Law School Transparency (LST)  “legal education inflation far exceeds the inflation rate.

“In 1985, the average private school tuition was $7,526 (1985 dollars), which would now cost a student $16,294 (2013 dollars). Instead, the average tuition is $41,985 (2013 dollars). In other words, private law school is now 2.6 times as expensive as it was in 1985 after adjusting for inflation. Public school (for residents) is now about 5.5 times as expensive.”

As reported by the Cleveland Plain Dealer in July, “Ohio law school grads face debt of nearly $100,000 and few job prospects, report says,” the Commission’s report finds that the average 2015 Ohio law school graduate has approximately $98,475 in law school debt. Worse yet, “Only approximately 58 percent of 2015 Ohio law school graduates are employed in jobs requiring bar passage.”

And it’s only getting worse. For entering 2017 students, Ohio’s Law School Transparency (LST) numbers are even higher — well north of $150,000 on average.

In Arizona, LST projects even more sobering statistics for wanna-be lawyers starting law school in the Grand Canyon State this year. They should expect a “full price projected debt” for their J.D. degree of $175,084 if they are state residents graduating from Arizona State University. If they’re residents and start and finish at the University of Arizona, the number is $173,280.

At Arizona Summit Law School, one of the nation’s most expensive law schools, the “full price projected debt” is an astounding $252,571. This averages out to $200,978 among the three Arizona schools. It breaks out to an average debt service headache over 10 years of $2290 per month.

In Nevada, LST reports that students matriculating in 2017 at the University of Nevada, Las Vegas, the state’s only law school, can anticipate a “full price projected debt” of $175,310 and a $2000 per month nut over 10 years.

‘What me worry?’

https://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Happiness.gif/209px-Happiness.gifThe root problem is that mandatory bars like those in Nevada and Arizona aspire to serve competing interests — those of the legal profession and those of the public. But it can’t be done because these interests often conflict.

Instead of alleviating practice burdens, for instance, mandatory bars constantly tinker with their bureaucratic spigots to open ever increasing cost, time and stress pressures on members. This is because they’re not necessarily looking out for the interests of lawyers.

In mandatory bar Nevada, for example, there’s a bar study group looking at the supposed merits of forcing all the state’s lawyers to buy professional liability insurance. If the model is mandatory bar Oregon, currently the only jurisdiction mandating professional liability insurance, expect only one blessed provider.

Moreover, the cost will be substantial. In 2017, Oregon lawyers ponied up a whopping $3,500 apiece for bare minimum coverage of $300,000 per incident and $300,000 aggregate. And Oregon has almost twice as many lawyers as Nevada.

Voluntary bars look out for the interests of members.

In closing, here’s what the Ohio Bar’s Futures Commission looked at:

•  How to ensure new lawyers enter the profession practice ready and without the crushing burden of student debt;
•  How busy lawyers at all stages of their careers can get the most out of their required continuing legal education credits;
•  The appropriate role of online legal service providers, limited multidisciplinary practice, fee-splitting and other emerging new business models in the delivery of legal services and if they can they help lawyers better serve clients and stay true to the values of the profession;
•  And with the real and perceived expense of legal services, how to ensure access to justice for all, regardless of income.

Besides supporting cost reducing law school initiatives, the Commission also took a departure from the latest gambit being promoted by mandatory bars: the licensing of non-lawyers to practice law. “Believing firmly that any provision of legal services should be done under the direction of a licensed attorney,” the Commission pronounced its opposition to “any effort to establish new categories of non-lawyer legal service providers (NLP) in Ohio and instead, support the development of programs or actions that would connect the unrepresented with available attorneys.”

So before state bars go all in and eliminate unauthorized practice of law rules to allow non-lawyers to directly compete with lawyers, something ought to be done to level the field. Stem the tide of unconscionable tuition debt from overpriced law schools.

But as they bang away on their Access to Justice drums, don’t expect a pronouncement like Ohio’s from mandatory bars in Washington, Utah and Arizona to name just three where non-lawyers already compete for business with lawyers.

Unfortunately, mandatory bar leaders aren’t listening. When they’re not holding expensive annual convention boondoggles like the Nevada Bar in Hawaii (2016), Texas (2017) and Illinois (2018), they’re busy finding new ways to make it harder for lawyers to earn a living. 

The Futures Commission Report is available here

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Credits: Bury your head in the sand, by Sander van der Wel at Wikimedia Commons;Tin Woodman, by William Wallace Denslow at Wikimedia Commons, public domain; Life user Manual, by Unuplusunu at Wikimedia Commons, public domain; Smug by IburiedPaul at Flickr Creative Commons Attribution;3D Shackled Debt by Chris Potter  at Flickr Creative Commons Attribution; Second Band Drummer 5 Mono, by Dave Shaver, at Flickr Creative Commons Attribution.

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There was an apocryphal story — meaning it was likely bullshit — told by a law school professor about a 1-L engineer. As the story goes, the engineer turned wanna-be lawyer quit law school his first year because he was frustrated with the Socratic Method; the insufficiency of bright line rules; and the seeming poverty of absolutes in Law. For someone trained to give answers with an engineer’s precision, “it depends” was never going to be good enough. The Law may be a jealous mistress but it’s also an inconstant one.

https://upload.wikimedia.org/wikipedia/commons/thumb/5/5c/The_Scientific_Method_as_an_Ongoing_Process.svg/583px-The_Scientific_Method_as_an_Ongoing_Process.svg.pngThe point of the tale was clear. Empirical mindsets flee law schools. The scientific method is displaced by what’s called the legal method. One lawyer blogger observed that lawyers invert the scientific method, adding, “Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state.” Precisely.

An “epidemic” of substance abusing lawyers.

So it was hardly a surprise that the lawyer commentariat would sigh with collective angst as soon as The New York Times published “The Lawyer, the Addict” subtitled “A high-powered Silicon Valley attorney dies. His ex-wife investigates, and finds a web of drug abuse in his profession.” The essay was penned by Eilene Zimmerman.

THE SKY IS  FALLING!!!

It wasn’t long after publication that the legal blogosphere ramped up, for example, here and calling it “an epidemic” here. Predictably, the-sky-is-falling.

One over-heated hand-wringer, a 2017 SMU Law grad even blogged at “In A Punishing Profession, Too Many Lawyers Are Paying The Ultimate Price,” “I hope law school candidates, law students, and lawyers take Zimmerman’s message to heart . . . the difference between heading the warnings and missing the signals can be life and death.”

As though all lawyer reputations needed further blemishment for the life choices of a few.

Just Say No.

https://upload.wikimedia.org/wikipedia/commons/thumb/2/20/NRJUSTSAYNO.jpg/160px-NRJUSTSAYNO.jpgThere are 1.3 million lawyers in the United States and like most of society, they are a cross-section of all that reduces and elevates the human condition. But thanks to the much disseminated tragic tale of the Silicon Valley lawyer’s drug overdose death and the accompanying quotes in the article from two recovering lawyers, the public might reasonably albeit illogically conclude that the million plus member profession is racked by addiction. Why not paint all lawyers with the same broad brush? Do we need a Nancy Reagan for lawyers?

To be fair, the story takes a stab at empiricism mentioning a Hazelden Betty Ford Foundation and American Bar Association (ABA) 2016 report that concluded “that attorneys experience problematic drinking that is hazardous, harmful, or otherwise consistent with alcohol use disorders at a higher rate than other professional populations.”

Data deficient conclusions.

Unfortunately, in their haste to pronounce knee-jerk remedies based on an incomplete sample size, the following cover your analysis (CYA) paragraph in the report is apparently being given short shrift. Could it be because it doesn’t buttress the narrative of a widespread drug and alcohol problem among lawyers?

“Our study is subject to limitations. The participants represent a convenience sample recruited through e-mails and news postings to state bar mailing lists and web sites. Because the participants were not randomly selected, there may be a voluntary response bias, over-representing individuals that have a strong opinion on the issue. Additionally, some of those that may be currently struggling with mental health or substance use issues may have not noticed or declined the invitation to participate. Because the questions in the survey asked about intimate issues, including issues that could jeopardize participants’ legal careers if asked in other contexts (eg, illicit drug use), the participants may have withheld information or responded in a way that made them seem more favorable. Participating bar associations voiced a concern over individual members being identified based on responses to questions; therefore no IP addresses or geo-location data were gathered. However, this also raises the possibility that a participant took the survey more than once, although there was no evidence in the data of duplicate responses. Finally, and most importantly, it must be emphasized that estimations of problematic use are not meant to imply that all participants in this study deemed to demonstrate symptoms of alcohol use or other mental health disorders would individually meet diagnostic criteria for such disorders in the context of a structured clinical assessment.”

Glossed over, too, is what the researchers declared was “the need for greater resources for lawyer assistance programs, and also the expansion of available attorney-specific prevention and treatment interventions.” Greater resources? I know of at least one Arizona lawyer assistance program volunteer who would agree. See “The Arizona Bar has no Member Assistance Program. They just want you to think they do.”

For mandatory bars, compulsory CLE is always the answer.

https://i.imgflip.com/10t4ve.jpg?a416544But instead of recommending comprehensive, objective evaluations to assess the need and efficacy of existing lawyer assistance programs, state bar associations instead look to more of the same: non-data driven ‘solutions.’ When legal elites perceive a problem, widespread or not, they do what lawyers do best, they impose rules. And the favorite option is imposing rules and regulations on others based solely on hasty generalizations. Verification or proof by observation are beside the point. Better to leap to a conclusion — not by data — but by guess and by golly.

The Bar’s easy fix is to write new rules to compel all lawyers, even the sober and abstinent to take a continuing legal education class in substance abuse and mental health awareness whether they need it or not. “Once more unto the breach, dear friends, once more” — but armed not with might — just an hour of untested mandatory CLE.

Nevada, for instance, was one of three jurisdictions requiring all active Nevada attorneys to take a minimum of one CLE hour once every three years on substance abuse, addictive disorders and or mental health issues. But as of January 1, 2018, Nevada will go everybody one better by increasing the total number of CLE hours annually required from twelve to thirteen, to include ten hours of general education, two hours of ethics, and one hour in the area of substance abuse, addictive disorders and/or mental health. Nevada Justice Kris Pickering, however, dissented stating, “I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates.”1

In the forced march history of CLE, there’s never been empirical proof much less data verifiably demonstrating that continuing legal education classes make lawyers more competent, more ethical or more professional. Will mandatory CLE make lawyers more sober? The only real certainty is that mandatory CLE has an indispensably salutary impact on a state bar’s bottom line. No wonder the legal establishment’s cognoscenti deem mandatory continuing legal education the answer to virtually every problem.

In the end, lawyers can always count on mandatory bar associations to impose further impingements on their liberty interests. It’s how they roll. Therefore, is it too extreme to conjure up what might be next? Specimen collection and random drug tests anyone?

 

 

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1 Nevada Supreme Court Justice Kristina Pickering’s dissent concerning the 13th mandatory substance abuse CLE hour is worth reading:

“Studies suggest that 20% of lawyers suffer from alcoholism or other addiction. This quintile of the bar accounts for more than 50% of the court’s bar discipline docket. These numbers, and the human and professional cost they represent, led me four years ago to approve amending SCR 210 to require one hour of continuing legal education (CLE) every three years on addiction and mental health issues. Directing that one out of the total 36 CLE hours required over a three-year period address these subjects seemed a modest imposition on the members of the bar if doing so accomplished this: ensuring all lawyers know about the help available free of charge through the Nevada Lawyers’ Assistance Program and the separate and entirely confidential Lawyers Concerned for Lawyers program.

“Today’s amendment to SCR 210 goes significantly further. It raises the number of mandatory CLE hours from 12 to 13 hours per year and specifies that the additional hour address addiction, substance abuse, or mental health.’ The cost of this increase to the 5,083 bar members who are subject to Nevada’s mandatory CLE requirements has not been calculated, or even acknowledged. Assuming a cost of $175 per hour for time not working and $25 per hour for tuition, both low estimates, we are looking at over $1 million in added annual expense. For that, I would expect evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them. Yet, there appear to be no peer-reviewed studies that examine the impact of MCLE classes on attorney alcoholism or substance abuse rates. And, while 18 states allow CLE credit for education on substance abuse and mental health issues, and three states have rules requiring an hour of substance abuse/mental health CLE once every three years, I have found none that have made it an annual requirement. As recognized by the states that make such education optional, not mandatory, there are other issues besides substance abuse and mental health on which CLE, chosen by the individual lawyer according to his or her interests and needs, is appropriate.

“While I share my colleagues’ concern with substance abuse and addiction in our society, generally, and in the legal community, in particular, I have true reservations about the wisdom and efficacy of today’s rule amendment. I therefore respectfully dissent.”

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Credits: Mad Scientist Photo Booth, by Zlaxfish Photography  at Flickr Creative Commons; Scientific Method, by ArchonMagnus at Wikimedia Commons, Share-Alike Attribution; Drawn live on January 23, 2010, by René van Belzen, Flickr Creative Commons Attribution-NonCommercial-ShareAlike; Nancy Reagan speaking at a ‘Just Say No’ Rally in Los Angeles, California. 5/13/87,” Wikimedia Commons, public domain; Puppet master meme generater at Imgflip;“Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license.

 

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High temperatures, sweaty cheeks, thunderstorms, flash floods and fungus-dispersing dust storms are our annual devil’s brew during monsoon season. This time of year is the flip side of what locals otherwise consider heaven.

Circumstances permitting, more fortunate desert dwellers of the non-snowbird variety temporarily pack up their monkey butt powder and flee for whatever short-lived respite is found in cooler climes.

https://upload.wikimedia.org/wikipedia/commons/c/c2/Demonstration_of_Sweat.jpgBut notwithstanding sticky summer’s infernal doldrums, elsewhere there’s news of a different sort involving your friendly state bar associations. Here’s a quick rundown from The Irreverent notebook:

Washington State Bar President Unexpectedly Resigns

https://upload.wikimedia.org/wikipedia/commons/thumb/5/54/Flag_of_Washington.svg/320px-Flag_of_Washington.svg.pngWithout much notice or fanfare but citing “personal matters that require her attention,” Washington State Bar President Robin Haynes abruptly resigned last month following news reports she was under investigation stemming from accusations by two former law firm employers claiming Haynes had committed financial improprieties, specifically allegations she embezzled some $9,300. See “WA State Bar Association president accused of embezzling nearly $10k” and “President Of Washington Bar Association Resigns — Right Before The Criminal Charges.”

In a statement reported by Spokane’s Spokesman-Review newspaper, Haynes’ lawyer explained, “While Ms. Haynes has done nothing wrong and looks forward to clearing her name in a fair tribunal, she was also aware that even the rumor of an investigation would cast a shadow over the important work that the State Bar Association does.” See “Former bar president accused of using law firms’ credit cards for gym, political donations.”

Haynes who at 39 was also publicized as the youngest Washington Bar president ever — had a term that was not without some controversy. This is because she used her ‘bully pulpit’ to editorialize often in the state bar magazine against sexism and bias. In some ways, her admonitions took on the cast of what’s become the méthode du jour embodied in the polarizing proposed ABA Model Rule 8.4(g) amendment that would impose an unconstitutional speech code on lawyers. See “Allies in the Law” at February 2017 NW Lawyer where author and former WSBA Governor Phil Brady writes in her defense, “We’ve seen a lot of negative reaction to WSBA President Robin Haynes speaking up about the sexism present in our profession.”

Haynes, like the rest of bar leadership was also an ardent defender of the bar’s recently passed 141% dues increase. See “The Dialogue Continues.” Inasmuch as the bar’s governing board and court had nullified a member referendum calling for a dues increase vote, Washington State Senator and WSBA Member Mike Padden subsequently introduced Senate Bill 5721 to require the WSBA “to obtain an affirmative vote prior to increasing bar dues for membership.” Unfortunately, Padden’s bill did not get out of committee and to the floor for a vote.

California State Bar non-regulatory function split moving forward

https://upload.wikimedia.org/wikipedia/commons/thumb/9/98/California_State_Assembly_room_p1080879.jpg/320px-California_State_Assembly_room_p1080879.jpgLast week, the California Assembly Judiciary Committee unanimously approved SB 36, a bill that has had multiple amendments since it’s 2016 introduction. According to the July 17, 2017 assembly bill analysis, it “prioritizes the State Bar’s regulatory functions by separating the trade association functions into a new nonprofit and helping improve governance of the State Bar.”

To do this, SB 36 splits off the Cal Bar’s 16 specialty practice groups into a private nonprofit. The bill covers a lot of terrain impacting both bar governance and structure, including eliminating elections for officers of the Board of Trustees and changing the current governing board super majority into a simple majority of practicing lawyers. It also gives the Bar explicit authority to re-fingerprint active lawyers so that it can receive arrest alerts about them. Assuming swift legislative passage next month and gubernatorial signing, it becomes effective January 1, 2018.

Meanwhile in Arizona, a rule amendment petition asking the Arizona Supreme Court to similarly prioritize public protection by bifurcating the State Bar of Arizona’s regulatory and non-regulatory functions is still awaiting court action. In June, a reply was filed by the petitioner responding to the State Bar of Arizona’s wholly predictable comment against the petition. It’s worth reading here.

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Credits: monkey via morguefile.com; Washington flag, Wikimedia Commons, public domain; sweat demonstration by Dogbertio 14 at Wikimedia Commons Creative Commons Attribution; California State Assembly via Wikipedia by David Monniaux, Creative Commons Attribution-Share Alike license.

 

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