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Archive for the ‘Your friendly state bar.’ Category

Grape eating contest | by denverkid

Proponents also speciously called the whole thing an “authorization” to increase dues and not a dues increase. And a “kick me” sign is not an inducement for a foot to the backside.

So citing oaths, obligations, and the special snowflake status of lawyers, the petitioners hoped to add Florida to the list of jurisdictions such as Minnesota and Wisconsin where as a condition to practice, state supreme courts tax lawyers to fund civil legal services. The other states that impose mandatory civil legal aid assessments are Indiana, Illinois, Texas, Missouri and Pennsylvania. And not to be outdone, at a $100 Florida’s tax would have been the highest.

"Peel Me a Grape" | by basykesIn December, the Florida Supreme Court heard arguments on the petition. Noteworthy was this scriptural riposte courtesy of Justice James Perry, “To much who is given, much is expected.”  Of course the easiest burdens to bear are somebody else’s.

‘Don’t worry about the mule going blind, keep loading the wagon.’

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Speaking, then, of the noble obligations of the so-called privileged, just last month I read about the falling average earnings of solo legal practitioners. Solos and small firms generally represent two-thirds of most U.S. lawyers.

In the last 25 years, average solo pay has fallen from $75,000 to $50,000 according to data compiled by University of Tennessee Law School Professor Benjamin Barton and cited in Professor Paul Campos’ post, The Collapsing Economics of Solo Legal Practice. Professor Barton’s new book, Glass Half Full: The Decline and Rebirth of the American Legal Profession was published last month.

And no matter that lawyer unemployment remains a problem in Florida or that 44% of all respondents to the Florida Bar’s last lawyer economics and law office management survey reported their business/profitability had decreased the past two years. In the same survey, almost 40% said they didn’t expect things to get better in the near future.

And then there’s this. According to Law School Transparency, nearly 85 percent of law graduates financed law school through student loans. The average debt incurred for 2010 law graduates was $77,364 at public law schools and $112,007 at private institutions. See “Burdened With Debt, Law School Graduates Struggle in Job Market.”

Now don’t get me wrong. I’m well aware that legal aid programs across the country are in continual budgetary crisis. And I’m not quibbling with the need, the rationale, or the petitioners’ parade of horribles. My objection is over the means. When did fixing a longstanding societal problem become the sole obligation of lawyers? By comparison, are physicians and dentists as a condition of practicing their professions likewise required to pony up for indigent healthcare services?

Fortunately for Florida lawyers — but not so much for legal aid advocates, petition opponents prevailed. Stating that the “issue requires further study and a more comprehensive approach,” the Florida Supremes declined to adopt the proposed amendment.”

Hat tip to The Legal Watchdog  for passing along the latest moves afoot in Florida.

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Photo Credits: “grape eating contest,” by denverkid at Flickr Creative Commons Attribution; “peel me a grape,” by Bev Sykes at Flickr Creative Commons Attribution.

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mooning the neighbourhood | by Pixel Addict

In February, the U.S. Supreme Court took a bite out of dentists in North Carolina. And at the same time, the high court made state professional boards everywhere nervous, including mandatory state bars.

By a 6-3 vote in North Carolina Board of Dental Examiners v. Federal Trade Commission, the Supreme Court imposed a higher hurdle for nonsovereign licensing boards to gain the state-action immunity that shields board members from federal antitrust liability.

Coincidentally, just a few years ago, a wise-cracking dentist friend had mentioned during a golf round how dentists were becoming annoyed over the growing number of non-dentists — mostly, cosmetologists, offering teeth-whitening services to the public. Beauticians were not only beautifying hair and skin but were now traipsing onto teeth territory and offering lower cost teeth-whitening services than dentists.

I only remember his story because, as a horse-owner, several years before, horse veterinarians around the country were trying to get non-veterinary dental lay practitioners (NVDLPs) banned from floating a horse’s teeth. The “float” is the name of the file used to smooth or contour a horse’s teeth and horse-shoers, self-taught cowpokes, and self-described ‘equine dental technicians’ had been biting into horse vet incomes by offering more affordable floating services.

A license for everyone?

When it comes to protecting turf, it’s always financial self-interest at the root of it. Never mind the chest and table pounding about protecting the public. No wonder an increasing number of everyday occupations hanker for licensing ‘protection.’ They think it heightens consumer perceptions of quality and increases demand. And of course, licensing restricts supply which translates into higher prices.

But in many instances, occupational licensing offers only an illusion of quality while doing little to actually protect consumers. Instead, occupational licensing simply creates self-serving barriers to entry, which makes the provided service more expensive and more unavailable.

And because it means additional revenue while offering a public protection sop to the electorate, government bureaucrats don’t mind creating more licensing categories to feed the bureaucratic maw. No wonder some call it a plague.

 

Tooth or Consequences in North Carolina.

So what happened in North Carolina is that its 8-member dental board made up of 6 licensed dentists elected by their fellow dentists, began sending out cease-and-desist letters to individual non-dentists and even to the North Carolina Board of Cosmetic Art Examiners warning them that under North Carolina law, the unlicensed practice of dentistry was a crime. And teeth-whitening was considered the practice of dentistry.

The cease-and-desist letters totaling 47 had their intended effect, chasing out the non-dentist teeth-whiteners out of the dental temple. But they also attracted the unwanted attention of the Federal Trade Commission (FTC) who suspected the board’s actions weren’t motivated so much by high-mindedness about consumer protection as they were over non-dentist competitors gumming up revenues.

In the FTC’s view, where the regulatory agency has a “financial interest in the restraint [it] seeks to enforce” and is “controlled by private market participants who [stand] to benefit from the regulatory action,” the state action exemption required active supervision “in circumstances where the state agency’s decisions are not sufficiently independent from the entities that the agency regulates.”

As a consequence, the FTC concluded that the Board had to meet the active supervision requirement if it wanted to benefit from state-action immunity. “Because North Carolina law requires that six of the eight Board members be North Carolina licensed dentists, the Board is controlled by North Carolina licensed dentists.” Moreover, dentists perform teeth whitening.  Therefore, “Board actions in this area could be self interested.” You think? See “How a state dentistry board hounded non-dentist teeth-whiteners out of North Carolina” and Brief of Respondent Federal Trade Commission. 

A bite out of the bar. 

roger daltrey shows us why his primal scream from "won't get fooled again" is still the best in rock 'n roll | by greg westfall.

Why should lawyers care?

Because it may lead to more legal challenges given our over-regulated legal market. And it will engender more defiance against the host of anti-competitive actions taken by mandatory bar associations. Indeed, on June 3, 2015, Legal Zoom filed a $10.5M antitrust suit against the North Carolina Bar.

Some legal analysts even think it will mandate more “active supervision” of state bars by their state supreme courts. Said one, “the decision probably will lead to state supreme courts having stronger relationships with their state bars and oversight to see whether they are acting consistent with statutory authority or the authority granted by their state supreme court.” Still others think it might shake up unauthorized practice of law (UPL) restrictions and “revive challenges to UPL rules.” See PrawfsBlawg: Teeth Whitening for Lawyers

munch - it's a scream | by oddsock

Oh, woe. Oh, scream.

And claiming their work would be impaired, mandatory bars had predicted a parade of horribles in the wake of the decision. By denying them state action immunity under the Sherman Act, private regulatory boards with a controlling number of decision-makers actively participating in that profession, i.e., “market participants,” would be forced to act under a clearly articulated state policy and under active supervised by the state. “Active market participants,” the Court said, “cannot be allowed to regulate their own markets free from antitrust accountability.”  Oh, woe. Oh, scream.

 

Scream | by MooganicAs Amici Curiae in support of the North Carolina Dental Board, the North Carolina, Nevada, West Virginia and Florida State Bars had paraded the horribles in their Brief, including that “the limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.

Additionally, they predicted “State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.” And worse, they claimed lawyers won’t want to serve on bar governing boards “for fear of being sued—and of being held individually liable—in treble-damage antitrust actions.” Last, they proclaimed those “who do agree to serve may be deterred from fulfilling their state-authorized enforcement duties against defendants who threaten antitrust claims.” 

The non-state agency state bar. 

Bite Me Bar Sign | by Sam HowzitStates are exempt from federal antitrust laws for their acts when acting in their sovereign capacities — even when those acts would violate antitrust laws if done by a private party. Not so state boards with active market participants who should now be treated like private entities and who to receive state-action immunity, must now meet the two-test requirement for private entity immunity: a clearly articulated anticompetitive statute and active supervision by the state.

The Scream | by adactio

As for the State Bar of Arizona, legal elites here have been pondering the implications of the North Carolina case, including whether or not to leaven the influence of active market participant lawyers with more non-lawyers on its governing board.

But in my opinion, there are likely more ominous reverberations than merely decreasing the number of foxes in the hen-house. As its website proclaims, the Arizona Bar proudly claims it’s “not a state agency.” So it would seem that as “a nonsovereign actor controlled by active market participants,” to avoid antitrust liability, it will have to work even harder now to satisfy the two requirements of clearly articulated state policy and active State supervision.

In Bates v. State Bar of Arizona 433 U.S. 350 (1977), the U.S. Supreme Court held that the Arizona Supreme Court’s rule restricting lawyer advertising violated the First and Fourteenth Amendments and ruled that commercial speech merited First Amendment protection. Admittedly, the nation’s high court went along with the Arizona Supreme Court’s determination in Bates that the Arizona Bar was immune from federal antitrust liability because in enforcing the Court’s then rule against lawyer advertising the Bar’s role had been “completely defined by the court” and moreover, the Bar acted “as the agent of the court under its continuous supervision.” 

After North Carolina Dental Board v. FTC, whether this will be true in every instance implicating anticompetitiveness should be worrisome for the non-state agency Arizona Bar particularly when Goldfarb v. Virginia State Bar (421 U.S. 773, 791 (1975) was also cited by the Court for the principle that while state bars are a state agency for some limited purposes, that fact does not create an “antitrust shield that allows it to foster anticompetitive practices for the benefits of its members.”

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Photo Credits: “mooning the neighbourhood,” by Pixel Addict at Flickr Creative Commons Attribution; “Roger Daltrey …” by greg westfall at Flickr Creative Commons Attribution;”Bite Me Bar Sign,” by Sam Howzit at Flickr Creative Commons Attribution;”Munch — it’s a scream,” by Ian Burt at Flickr Creative Commons Attribution;”The Scream,” by Jeremy Keith at Flickr Creative Commons Attribution;”Scream” by Mooganic at Flickr Creative Commons Attribution.

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The State Bar of Arizona sent out a blast email to members last Thursday afternoon, April 2nd. The email sincerely insincerely asked for comments about its 2015-2019 Strategic Plan “to make sure we haven’t missed anything.” But the deadline for response was a mere 4 work days later by tomorrow, Tuesday, April 7th.

Most lawyers will miss the email, let alone respond. But then that’s hardly a surprise. The Bar makes a habit of eleventh-hour requests for member feedback. This way at least, it can always check the box that it asked for member input — even if it was late or after-the-fact.

It’s a tiresome stratagem since, as many of us know, a mandatory membership bar only pretends to care what members think or want.

For the autocratic Arizona Bar, top-down, under-the-radar decision-making is how it rolls.

So when the Bar asks for comments about its plans — it’s for appearances’ sake since the Bar believes more in dressing the window than in opening it to let in light and fresh air.

Strategic Plan Rehash.

In its request, the Bar linked to its one-page “Outline of Goals,” which briefly summarized its strategic planning committee’s five goals: competency; ethics; professionalism; administration of and access to justice; and professionalism.

It’s all much ado, however. The 2015-2019 plan is little more than a rehash of its over-the-top 2010-2015 five-year plan. See “AZ Bar drafts up 5 year vision but misses the mark” and “Arizona Bar releases five-year vision”

And per usual, the outline is full of self-congratulation but also per usual, light on metrics. Where are the sets of measurements to quantify results? Where are the performance metrics to quantify performance? Or the project metrics to verify attainment of goals?

And what about the Bar’s continued problems with transparency, due process and communication? Or the failure to address the prioritization of resources and the elimination of low priority programs and services? Of course not. It’s all lip in search of service. For comparison, see the Nebraska State Bar’s revised strategic plan after its supreme court made most of its programs and services optional.

The Bar’s plans are merely a means not to “sustain efficient and effective management of Bar resources” as the outline states — but excuses for mission creep, the bureaucratic Bar’s ingrained love for gradually broadening its original organizational objectives.

In the end, however, the short turnaround time for member response is of little import since the Bar’s poised to simply repeat what it did in 2010 and again prospectively proclaim its purported objectives a done deal: “The State Bar of Arizona demonstrates excellence in every area: operations, programs, resource management, policy and planning, and citizenship.”

“To Protect and to Serve.”

My only other thought is to wonder why the Bar even bothered to do a strategic plan since the state supreme court has undertaken its own state bar through a task force it created in August. Any strategic plan will be subordinated and subsumed by what the task force recommends to the court.

Indeed, according to the task force’s mostly completed work, the state supreme court will soon be retooling its rules “to clarify that the mission of the State Bar of Arizona is primarily to protect and to serve the public, and secondarily, to serve its members.”

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“All we know are the facts, ma’am.”

Or in other words, as a bar executive once told me, to function “like a consumer protection agency”  — i.e., to protect the public from its members.

So much for all the soft-pedaled mush language in the strategic plan outline about ‘promoting and enforcing the highest member ethical conduct’ or about ‘enhancing the Bar’s protection of the public.’

 

 

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Photo Credits: “Don’t Listen,” by Sean Loyless at Flickr via Creative Commons Attribution; “Bored in the subway,” by Mike Warot at Flickr via Creative Commons Attribution;”Chris,” by Paris Buttfield-Addison at Flickr via Creative Commons Attribution;104/365 “These are the times we all wish for,” by bp6316 at Flickr via Creative Commons Attribution; “LAPD Seal,” by JBrazito at Flickr via Creative Commons Attribution; Jack Webb, via Wikipedia Commons.

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In August, I reported the Arizona Supreme Court had directed the creation of a state bar task force to review “The Role and Governance Structure of the State Bar of Arizona.” But knowing how things roll around here, I had of meaningful reforms. In the words of Laurence J. Peter, “Bureaucracy defends the status quo long past the time when the quo has lost its status.”

Groupthinking task force.

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Arizona Bar leadership is notorious for group-think; tone-deafness; and smug self-congratulation. Far as Bar leadership’s concerned, ‘Everything Is AWESOME!!!

Business as usual.

Entertainment 606The task force has met five times and even started prepping its “initial, and very rough, draft report.”  But ‘fugetaboutit,’ there’s nothing to clap about.

Zero-based inquiry? Dissenting opinions? After reading five meeting minutes, save for cosmetic changes consisting of renaming the Bar’s board; seating fewer board members; and imposing overdue term limits — it’s clear without dissenters on the task force, it was preordained business as usual.

When thirty-six percent of the task force is composed of past members of the Bar’s board of governors, four of them also past presidents, including the immediate past president — expect no surprises.

Then there’s this, the appointed task force “consultant” ‘splainin‘ things to underinformed task force public members is the Bar’s well-paid CEO. Or as former Italian prime minister Silvio Berlusconi once said, “If I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest.” A mission and governance review with such guiding lights is like hunting with the game warden.

BoredThe recommendations so far:

“#1: The Task Force recommends amendments to Supreme Court Rule 32(a) to clarify that the mission of the State Bar of Arizona is primarily to protect and to serve the public, and secondarily, to serve its members.

“#2: The Task Force recommends “restyling” Rule 32(a) for clarity and for easier comprehension.

“#3: The name of the board of governors should be changed to the board of trustees. This change acknowledges the fiduciary responsibility of board members . . . .

“#4: The size of the board should be reduced to 15 to 18 voting members. The Task Force recommends a board of 15 members.

“#5: Some members of the board should be selected through an electoral process, and other members should be appointed.

“#6: A significant portion of the board should be public members who have no financial interest in the practice of law . . . .

“#7: To assure that appointed members have the skills and experience necessary for service on the board, a process should be created for recruitment, vetting, and nomination of appointees . . . .

“#8: Board members should serve staggered terms to preserve continuity of leadership and institutional knowledge.

Politicians 34“#9: Board members should have term limits. The number of terms depends on the length of terms, but generally, board members should serve no more than 8-12 years.

“#10: Attorney members of the board, whether elected or appointed, should have no less than 5 years’ experience as lawyers, and a clean disciplinary record for the 5 years preceding service on the board.

“#11: Court rules should include a process for removing board members for good cause. The Task Force did not define “good cause,” but it might include commission of serious crimes, commencement of or sanction for formal discipline, etc. The Task Force proposes removal of a board member on a two-thirds vote of the board, conditioned on the Court’s ratification.

LAW AND JUSTICE 12“#12: Ex officio members bring value to the board. The immediate past president of the bar, and an associate Supreme Court justice, should serve on the board as ex officio, non-voting members. The Court should appoint one law school dean as an ex officio member, with the appointment rotating annually or bi-annually among the deans of Arizona’s law schools.

“#13: The leadership track of the board of trustees should consist of three officers: a president, a president-elect, and a secretary-treasurer, who should serve one-year terms of office.”

Having the cake and eating it, too.

The task force glanced at the 148-page report submitted by the Task Force on the Role of the State Bar of Michigan — but like the guy that licks the frosting but leaves the cake, the task force only liked Michigan’s affirmation of mandatory membership. The rest was irrelevant.

This file is licensed under Creative Commons Attribution ShareAlike 2.0 Germany License.

Creative Commons Attribution ShareAlike 2.0 Germany License.

To the surprise of possibly only a squirrel with a backpack, Arizona’s task force recommended “that Arizona continue to have a mandatory (integrated) bar.”  See Mission & Governance Draft Minutes

As for the Arizona Bar’s posture concerning the reason the Michigan State Bar Task Force was created, i.e., whether as a mandatory bar, the Michigan Bar could fulfill “its core mission of service to the public and our members within the constitutional boundaries defined by Keller v. State Bar of California” — well, that was given short shrift.

Not like it mattered that the genesis of the Michigan Task Force was a state bar letter to the Michigan Supreme Court opposing a Michigan Bill to make bar membership voluntary. Noting that the bill raised “questions about the operation of the State Bar as a mandatory organization that are most appropriately addressed within the judicial branch pursuant to the Supreme Court’s exclusive constitutional authority . . . For that reason, we write to request that the Supreme Court initiate a review of how the State Bar operates within the framework of Keller v. State Bar of California, 496 US 1 (1990).”

But since the State Bar of Arizona back-pats itself “Keller-pure” — the task force opted not to go there. ‘We’re good.’ Ditto on the Bar’s programs, services and activities — its amazingness is everywhere!

To review all meeting minutes and related documents go to AZCourts.gov

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Photo Credits: cartoon source “group think or team win” by brandtao;chart based on Irving Janis groupthink model by HaleyB3, Wikimedia Commons, Creative Commons attribution;11326426096.jpg and 113264261341.jpg by sideshowmom at Morguefile.com; Nom cake! by Sirenz Lorraine at Flickr via Creative Commons Attribution-NoDerivs License.

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The Eastern Seaboard may still be buried in ice and snow. But Spring beckons all the same. And come March — like swallows that supposedly always return to Mission San Juan Capistrano, U.S. lawyers receive their yearly state bar propaganda promoting that vestigial anachronism known as the annual state bar convention.

2015 Patrons ProgramLast month I received the Arizona Bar’s annual sponsorship solicitation letter ‘inviting’ members to underwrite the convention as “Convention Patrons.” Suggested donations range from $200 plus to $4000 plus. The Nevada Bar, where I also belong, likewise looks for convention sponsors. But not nearly as enthusiastically as Arizona’s Bar, which spends thousands of dollars in member dues to solicit each member by direct mail.

To pry open lawyer billfolds, the cover letter from Arizona Bar leadership that accompanies the patron contribution form extols (without corroboration) the convention as “consistently recognized as one of the finest in the nation” and asks members’ “help to maintain this position of prominence by returning the attached sheet with your contribution.”

Given such tireless entreaties, mandatory state bars never ever leave a lawyer’s consciousness. So notwithstanding that creaky old song about swallows coming back to Capistrano — likewise the truth is that swallows never ever leave Capistrano. They’re always around.

In the good ole’ summertime.

State bar conferences are usually held in summer preferably at climatically pleasant locales like, for instance, Seattle, Washington where the State Bar of Nevada’s Annual Meeting is set for July 9-11, 2015. Or lovely Sun Valley, Idaho on July 29th when the Utah State Bar’s Summer Convention features keynote speaker Citizens United author U.S. Supreme Court Justice Anthony Kennedy.

All well and good — except locally. The Arizona State Bar holds its annual meetings in June and in Arizona — hardly a climatically pleasant locale that time of year. Summer around here means hot enough to fry an egg on the sidewalk.

And alternating the venues between Phoenix and Tucson is of little use. The average June temperatures in each city easily surpasses 100 degrees°F. And in Phoenix, site of this year’s Butt-Numb-A-Thon, the June thermometer averages 104 degrees°F. The good news for the Bar is that by keeping the air conditioning cranked up, bored conferees don’t wander far from the all-you-can-eat CLE buffet or from the shameless self-congratulation ceremonies.

Getting cheeky.

Another way to keep ‘cheeks in seats’ — at least per the State Bar of Wisconsin, is to headline the event with the likes of humorist, actor, and author Mo Rocca. Wisconsin holds its 2015 Annual Meeting in June at Lake Geneva, Wisconsin and a Kenosha lawyer apprised me about this year’s speaker.

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But Mo Rocca? In 2010, the Wisconsin Bar featured retired U.S. Supreme Court Justice Sandra Day O’Connor delivering the keynote address. But in 2015, it’s the sobriquet sharing “Mo” whose fame comes via CBS Sunday Morning and frequent stinting as a panelist on NPR’s weekly quiz show, “Wait, Wait . . . Don’t Tell Me.”

The other NPR quiz show panelists Tom Bodett and Paula Poundstone were probably busy. At any rate, they didn’t invite Dick Cheney who stirred up Wyoming lawyers when he was keynote speaker at last year’s Wyoming State Bar Convention.

So no matter years of lackluster attendance and past pronouncements about the demise of the annual cheesehead lawyer convention, it appears its death was “greatly exaggerated.” Instead, the Wisconsin Bar has come roaring back — with Mo Rocca.

Ready. Fire. Aim.

But in Arizona, no worries. Keynote speaker? Who knows? Last year, according to the bar’s website, the principal address was also by a humorist but leastways, that fellow was also a lawyer even though nobody I know had ever heard of him. Of course, the same may later be said of Mo Rocca.

If the Arizona Bar hasn’t thought of it, NBC News Anchor Brian Williams is probably available now that he has six months of extra time on his hands. Or maybe that’s not such a good idea since his honorarium would most likely top Mo Rocca’s.

But for now, those waiting with ‘bated breath and whispering humbleness‘ will simply have to wait longer for the identity of the keynote speaker. The schedule hasn’t been fully announced for Arizona’s 2015 feast of self-congratulation, even though there’s a theme. Reminiscent of “Ready, Fire, Aim” — it’s “Ready, Set, Practice.”

In the end, however, it makes scant difference. Like some 90 percent of my colleagues, I won’t be showing face at the convention — so all those marketing appeals will go for naught.

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Photo Credits: 010 022.jpg by butkovicdub at Morguefile; IMG_4895copy.jpg By carmemlucia at Morguefile; Mo Rocca by Infrogmation (talk) at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license; Dick Cheney by DonkeyHotey at Flickr Creative Commons Attribution; Brian Williams by DonkeyHotey at Flickr Creative Commons Attribution.

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Since it’s pretty much routine anymore for the State Bar of Arizona to survey its lawyers every three years to put together its Economics of Law Practice Report, I don’t dwell on it anymore. I also don’t participate in the survey, which inquires: “How much money do attorneys in Arizona make? What is the average billing rate? Are attorneys in Arizona satisfied with their choice of profession?

“We need your help to find the answers,” the Bar asks. “These are just a few of the questions that will be answered in the State Bar’s 2013 Economics of Law Practice Survey Report. It doesn’t matter whether you’re a sole practitioner, a big firm partner, public defender or in-house counsel; please help us by taking 20 minutes to complete this questionnaire.” See “Welcome to the 2013 Economics of Law Practice Survey.”

It’s offensive the Bar deigns to impose on an Arizona lawyer’s time by asking them to complete a 20-minute survey and then has the brass to sell the survey data it collects to those very same data points.

Besides, the whole thing is so much spin anyway — not to mention you need a modicum of allowance for the informal rule holding that the integrity of output is dependent on the integrity of input.

But since state bars are pretty much copy-cats of one another, particularly when it comes to getting lathered up over new revenue streams, it’s no surprise that Cheesehead lawyers in Wisconsin are being similarly surveyed and then asked to purchase the fruits of their labors,Economics of Law Practice in Wisconsin 2013 Survey Report.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/2/2d/Hippopotame_%28Zoo_de_Berlin%29_%286081008830%29.jpg/320px-Hippopotame_%28Zoo_de_Berlin%29_%286081008830%29.jpgWhen last I mentioned the Arizona Bar’s law practice economics survey in 2010, State bar says ‘take our survey so we can sell you the results,” Wisconsin may not have been marketing and selling its economic survey. But then times change and the bureaucratic maw always needs feeding.

File:Cheesehead.jpgAnd so the Wisconsin Bar has of late been aggressively hustling its own law practice economics report. They’ve been emailing members and have even featured the videotaped ministrations of a marketing maven and encouraged the use of their survey so lawyers can assess their markets. (Hat tip to Wisconsin buddy, The Legal Watchdog).

But at least in Wisconsin, the state bar gives its lawyers a wee break by charging $99 for their report versus $125, which is what Arizona Bar members are asked to pay for their complete results. In both jurisdictions, though, the public pays well north of $200 for a copy.

Frankly, I think the only reason a lawyer might be interested in the results is to learn the net income attorneys in their jurisdiction purportedly claim to be earning. And while the first liar rule is always in effect, the Costanza rule also applies, “It’s not a lie … if you believe it.

Anti-trust doesn’t apply.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/55/Twenty_dollar_bills.JPG/320px-Twenty_dollar_bills.JPGThe data is also the only lawful means to uncover what other lawyers are charging without running afoul of posted minimum fee schedules. That stratagem was banned almost 40 years ago by Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). And more importantly, lawyer fee surveys are also relied upon in support of counsel applications to a court for fee awards.

Thanks to guidelines from the U.S. Department of Justice and the Federal Trade Commission albeit concerning health-care fee surveys, state bars conducting economics of law practice surveys nonetheless depend on that guidance to ‘safely’ gather member fee survey data.

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This allows competitors to provide information on prices and to review the resulting survey data without violating antitrust prohibitions. To qualify, the data collection must be managed by a third party, not a competitor; the information provided must be at least three months old; the information must be aggregated based on information from at least five participants; and no individual participant can be identified. Conducting information exchanges in this manner would not be likely to raise an inference that prices or fees were set collusively.” And coincidentally this explanation happens to come courtesy of Wisconsin Lawyer: “Shhhh! The Antitrust Risks of Discussing Legal Fees.”

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Photo Credits: Blogging fatigue, by Jonas Löwgren at Flickr via Creative Commons attribution; Cheesehead Pat, by Patrick Haney Patrick Hat Flickr via Creative Commons Attribution-NoDerivs 2.0 Generic License; Hippopotame (Zoo de Berlin), Wikimedia Commons, Creative Commons Attribution; Cheesehead, Wikimedia Commons, public domain; twenty-dollar bills.by public domain by its author, Merzperson at the wikipedia project; I Cut the Cheese by Erik Ogan at Wikimedia Commons.

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Image, Wikimedia Common

So here it’s almost year-end with so much to update and so little time, including that the Arizona State Bar’s ‘pay to play’ CLE precertification scheme was unexpectedly voted down by an otherwise management-submissive board of governors.

Conveniently overlooking that it started the commotion in the first place but acting now as though members suddenly mattered, here’s the Bar’s self-serving announcement, “After hearing comments from members and CLE providers, the Board of Governors has voted unanimously not to create a process for precertifying CLE providers.”

“Fanciful benefits” of CLE

But in place of other updates and since there’s a few more days before the last day of the year, let me instead here applaud colleague James C. Mitchell’s boldly trenchant move to petition to amend Arizona Supreme Court Rule 45. This is the rule that sets out the Court’s mandatory continuing legal education (CLE) requirements.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/80/The_Goose_That_Laid_the_Golden_Eggs_-_Project_Gutenberg_etext_19994.jpg/165px-The_Goose_That_Laid_the_Golden_Eggs_-_Project_Gutenberg_etext_19994.jpg

Arizona lawyer Mitchell petitioned the state supreme court last month to require an acknowledgement on all continuing legal education advertising, to wit,“that the value of mandatory continuing legal education (MCLE) is unproven and that the State Bar of Arizona has a financial interest in CLE marketing.” The acknowledgement would read as follows:

______________________________________________________________________

Rule 45. Mandatory Continuing Legal Education
(a) through (k) [No changes]

“(l) Advertising. Any advertisement for a continuing legal education program, product or service offered by or in conjunction with the State Bar of Arizona shall contain the following disclaimer:

“The State Bar of Arizona makes no representation that this program, product or service will improve any attorney’s competence or protect the public. No evidence proves that mandatory continuing legal education provides such benefits. The State Bar seeks revenue from CLE programs, products and services.

The disclaimer shall appear conspicuously in capital letters in black type at least half the point size of the largest type in the advertisement, but in no event smaller than 12-point type.”

______________________________________________________________________

As he writes in his petition, “The statement would align claims for mandated CLE with available evidence of its value, acknowledging that CLE as practiced has little or no verifiable impact on attorney competence or public protection.

“This amendment is needed to create transparency in a significant program of law practice regulation. It would protect the public and lawyers themselves from deception by unproven claims of value in a mandated scheme of so-called continuing legal education, and protect the State Bar from potentially making or embracing false claims of value in products and services that it provides for money.”

Asking for “honest disclosure.”

Of course, the Court will never approve this petition and will most likely deny it without explanation. Still, kudos to Mr. Mitchell for daring so eloquently and so wittily to expose what most of us already knew, MCLE is bare of verifiable, substantiated argument.

Calling for truth-in-advertising and referring to the Bar’s claims about CLE content quality as “hyperbole,” he adds, “. . . until that joyous day when MCLE joins Smell-O-Vision films and Michael Dukasis’s tank in Terrible Idea Heaven, Petitioner simply urges this Court to order a policy of honest disclosure in advertising.

“None of the Bar’s hyperbole likely violates the prohibitions on false and misleading commercial speech in ARIZ. REV. STAT. § 44-1481(A)(1) (fraud-in advertising statute bars omission of material facts) or our own ER 7.1 (material omission prohibited in communication concerning a lawyer’s services). But should our State Bar really slither through the same loopholes that permit overselling automotive clunkers? Should our State Bar, when advertising, omit material facts in a way that no ethical advertising lawyer may? Should the State Bar claim a right to withhold essential information about CLE’s worth, namely the fact that none has been proven? Petitioner respectfully suggests that it should not. We’re lawyers. We should do better. We should get out front with the truth.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/f/fc/Hands-Clapping.jpg/312px-Hands-Clapping.jpgTo which I cheer, “Bravo, bravo, bravo!”

Read the entire petition here.

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Photos: From The Æsop for Children, by Æsop, illustrated by Milo Winter at Wikimedia Commons, public domain;La publicite en France par Emile Mermet, advertising poster, ca. 1880 by trialsanderrors at Flickr Creative Commons attribution;hands clapping, Wikimedia Commons.

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