Feeds:
Posts
Comments

Posts Tagged ‘Arizona Supreme Court State Bar Mission and Governance Task Force’

Elections for seats on the respective governing boards of the State Bar of Arizona and the State Bar of Nevada kicked off coincidentally on the same day, May 4, 2017. Although I’m an active member of the Nevada Bar, I can’t vote in board elections since I’m no longer a full-time resident of the Silver State. For this out-of-state Nevada lawyer, it’s taxation without representation, including coming new burdens like the board-approved extra hour of mandatory continuing legal education to support lawyer sobriety and sanity.

But even if I wanted to vote in Nevada, I haven’t a clue or a care about who’s running. Not like I know much about the 20 candidates running for 9 seats in Maricopa County, Arizona. Talk about a crowded field. Arizona has a 30-member board that “oversees the policy making and operation of the organization.”

https://upload.wikimedia.org/wikipedia/commons/thumb/5/50/Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpg/640px-Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpgThere’s only one openly declared reformer, although there may be one or two stealth nonconformists in the field. But if they’re not saying, who knows for certain?

The fact is it’s nothing but a popularity contest anyway. The candidates are largely unknown to most lawyers. How are you supposed pick 9 out of 20? It’s almost like a judicial retention election. So expect a lot of undervoting.

For lawyers in Pinal County, Arizona’s third-most populous county, there’s only one choice since only one candidate bothered to run. No surprise, it’s the pro status-quo incumbent.

What representation?

Taxation without representation used to be the order of the day here at least for board elections. But starting May 4th, out-of-state active members of the Arizona Bar can vote. Inactive and retired members, though, still have to assume the position. They can’t vote even though the Bar happily collects a yearly $265 and $215 respectively, for the compulsory ‘privilege’ of subsidizing a bloated bureaucracy.

The ugly truth is that even with the opportunity to vote, it’s taxation without representation just the same. State bar governing boards are free to act without the consent of those they supposedly represent, especially since board members don’t act as their actual representatives. Board members don’t serve to deliver the views of those that elected them. They’re told to be trustees of the public interest not guardians for the well-being, prosperity, and happiness of lawyers.

Unfortunately for candidates and their electors, it’s a conflicted interest that most who run haven’t acknowledged, understood or reconciled. They sidestep the Bar-advertised to serve-and-protect mission of regulating lawyers to protect the public. Instead, they campaign like they’re running for a trade association with promises of giving “increased value to all of its members—without imposing additional regulations” or providing “valuable services to its members.” 

https://upload.wikimedia.org/wikipedia/commons/thumb/5/51/Frijoles_refritos.jpg/320px-Frijoles_refritos.jpg

Term limits and beans.

Still, at least there will finally be new faces on the Arizona Board. That’s because the only good news coming out of the 2015 State Bar Mission & Governance Task Force was the overdue imposition of term limits on board members who with not much better to do wouldn’t go away. Holy frijoles, some of those board members were nearing 20 years on the board!

The new rule says a board member can serve “no more than three consecutive three-year terms.” Alas, like the proverbial bad penny, if after 9 consecutive years they sit out a full term, they can seek reelection to additional terms.

In Arizona, the election runs 15 days until 5 pm Friday, May 19th. Not that apparently members care. Based on voter turnout for the 2014 Arizona Bar Board Elections, fewer than one-quarter of active Arizona attorneys gave a hoot or a clue about voting for the candidates running that year.

In 2014, only 4093 members cast votes — and that was with much more interest and aggravation since the board had just passed an unwarranted dues increase. Clearly, the disinterest, resignation, and apathy is worse among lawyers than for political elections. With that in mind, I think voter turnout may be even less this time.

The solution.

The real solution is not a board election or ginning up voter enthusiasm. Structural change won’t come from within. The status quo is too well entrenched. The true believers are too satiated drinking bar integration Kool-aid.

Mandatory bars like Arizona’s and Nevada’s need to be split between a mandatory membership component that regulates lawyers to protect the public and a purely voluntary membership component that looks out for lawyers. Such a division of functions at last fixes the existing confusion and conflict between board members who view the mandatory bar as a regulatory agency and those who see its purpose as promoting member interests.

This means supporting reforms — either legislatively or through court petition. It doesn’t mean voting for more of the same.

____________________________________

Photo Credits: “Run an effective meeting,” by Nguyen Hung Vu at Flickr Creative Commons attribution; “Paper bag Anon,” via Flickr Creative Commons through Wikimedia Commons; Diego’s frijoles at Flickr via Wikimedia Commons;”IMG_687,” by Michael Arrington at Flickr Creative Commons attribution; “wake up sheeple,” by ♫ feingoldens at Flickr Creative Commons attribution.

 

 

Read Full Post »

https://cdn.morguefile.com/imageData/public/files/a/almogaver/preview/fldr_2008_11_07/file000136151699.jpgYesterday, Arizona took one more step toward reforming the way lawyers are regulated in the state. By a vote of 31-29, the Arizona House passed HB2295. This bill splits the State Bar of Arizona into two subsets. One preserves the mandatory membership character in order to function as an independent regulatory quasi-agency that makes paramount the protection of the public from unethical lawyers. The other subset becomes a voluntary organization that engages solely in the kinds of non-regulatory activities more traditionally associated with professional trade associations. It’s worth watching the HB2295 floor debate here starting at the 3:34 minute mark.

A conflicted identity.

Politicians 81Like mandatory bars elsewhere, the Arizona Bar suffers from what former Wisconsin State Bar President Steven Levine once described as “a schizophrenic identity.”

In a just published post at The Legal Watchdog, Wisconsin lawyer, blogger, author and scholar Michael Cicchini mentions the article, State Bar’s limits on financial transparency create budgetary blind spots (subscription required) where author James Briggs writes that “The State Bar straddles a line between being a state agency, under the jurisdiction of the Supreme Court, and a private corporation, which is not compelled to share financial information even with the people elected to govern it.” The author then quotes Levine on the Wisconsin Bar.

FunHouse 119But Levine could just as easily be referring to Arizona’s Bar while talking about Wisconsin, “When it comes to the advantages of being a state entity . . . they claim to be a state agency.  But when they want to act in private or in secret and avoid all public requirements state agencies are required to follow, they say they’re just a private organization.”1

Case in point when I filed a public records request last July with the State Bar of Arizona asking for lobbying expenditure disclosures concerning its opposition to bar reform legislation, the Bar’s response included the following lawyer doublespeak: “However, without waiving our right to assert any future objections applicable to a nonprofit organization either by rule or statute, this organization believes in transparency and will provide answers when possible.”

arizona_bar_frank2

Can’t serve two masters or walk around with two heads.

Two hats for two heads.2

By deunifying the regulator/trade association functions, HB2295 solves the longtime problem the State Bar of Arizona has been burdened with, which is trying to serve two masters by wearing two hats for two heads. The result has been an irreconcilable conflict of interest. Why? Because the interests of the public and the interests of lawyers are not the same. More often than not, they are in conflict.

Consequently, the State Bar should not simultaneously serve the interests of the public and the interests of the legal profession. If it truly means to protect the public, then the interests of the public have to be foremost. Because HB2295 separates the State Bar’s regulatory and disciplinary functions from the State Bar’s trade association services and activities, it improves the protection of the public from lawyers who violate the canons of professional ethics.

Moreover, by dividing the regulatory and disciplinary functions from its lawyer trade association activities and transferring all regulation to the Arizona Supreme Court, HB2295 helps to bring lawyer regulation more fully compliant with the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

In Dental Examiners, the nation’s high court ruled that state regulatory bodies controlled by “active market participants” – such as practicing lawyers -­ are not immune from federal antitrust laws. The solution then, as provided under paragraph B of HB2295 is “active supervision” by the state Supreme Court or by an independent body under the Court — not controlled by practicing lawyers. Despite the recent work of a Court State Bar task force, the State Bar of Arizona continues to operate under a lawyer-dominant governing board elected by lawyers.

HB2295 now moves to the Arizona Senate where the State Bar of Arizona hopes its lobbyists and well-paid executives can sustain a firewall sufficient to stop the spread of reform.

__________________________________________

1 Some 14 years ago, in a First Amendment suit against the State Bar of Arizona brought by former bar member Edmund Kahn, the U.S. District Court for Arizona in an unpublished opinion discussed whether a state bar was entitled to Eleventh Amendment immunity. The Arizona Bar, which usually asserts it’s a private association not a state agency, tried in this instance to hide behind the Eleventh Amendment by claiming a “level of integration between the State Bar and the Arizona Supreme Court.” The Court distinguished the cases the State Bar invoked, which were Bates v. State Bar of Arizona involving lawyer discipline; Hoover v. Ronwin concerning bar exams and another discipline case in O’Connor v. State of Nevada. The District Court stated that when it comes to cases that generally challenge either the state bar’s disciplinary function or its function administering bar exams and admitting new lawyers, “the state bar clearly acts as an arm of the Arizona Supreme Court in regulating the practice of law.” But the District Court next made a most critical distinction, “In this case, Plaintiff challenges the way in which the state bar spends mandatory dues on non-regulatory functions and the bar’s procedures for addressing objections to its spending. Because this suit challenges the bar’s spending on non-regulatory programs, the link between the state bar and the Arizona Supreme Court is more tenuous.” The Court then went on to declare that the State Bar, a “non-profit corporation” did not qualify as a state agency for Eleventh Amendment purposes because among other factors, it also maintained “its own treasury and any award of damages would come from the state bar’s funds rather than the state treasury.”

2 Cartoon inspired by a bar executive’s email reference to a lawmaker last session counterintuitively overlooking the Bar’s own 800 lb Chimera in its parlor when describing a bifurcated state bar as “Frankenstein.”

 

 

Read Full Post »

So Friday afternoon the Arizona Supreme Court’s Task Force on State Bar of Arizona Mission and Governance posted its draft report to the sound of one-handed clapping. Anyone inclined to read the report can visit the court’s webpage.

But since the proverbial die is cast, it makes no difference that after-the-fact comments are being solicited from the hoi polloi.  Any remarks from the naked unwashed will be just in time to be too late and as inessential as a take-a-penny, leave-a-penny tray on a 7-11 counter.

The state high court will do as it pleases and it will please to keep the status quo: a compulsory state bar — just as the Task Force recommends. The rest of the recommendations are much ado about not much, such as recommending a smaller cast of characters now called “trustees” instead of “governors” to oversee policy-making and operations. As previously reported here and here, the Task Force, its report and recommendations will remain largely cosmetic and so inconsequential as to have a thimbleful’s worth of relevance to members.

Integrated not compulsory.

morguefile.com photo

The Task Force prefers dressing up the compulsory nature of the official state organization to which all attorneys must belong and where pay-to-play is the required precondition to earn a living as lawyers. Rather than “mandatory” or “obligatory” or “compulsory,” like state bar elites elsewhere, they’re partial to innocuous modifiers such as “integrated.” Other favorites include, “incorporated” or “organized” or “unified” to describe their state organizations — anything to disguise the fact that unlike physicians, architects, CPAs, dentists, engineers and tattoo artists, only lawyers are singled out for compelled dues-playing professional state association membership for ‘the privilege’ of earning a living in their chosen profession.

Clarifications.

The work of the Task Force has been mostly below-the-radar. This is typical of a state bar that treats transparency like Arizonans treat the amount of window tinting used to shield themselves from the desert sun. Unsurprisingly, one year after its creation, the odds are good most Arizona lawyers know little if anything about the Task Force. And now, they’re asked to comment about something they know little to nothing about.

morguefile.com photo

The final draft report was kicked off with a video, which I watched while wrapping up my Friday afternoon work. I’ve yet to read the 116-page report. All the same, surprises? Expect none — unless the Task Force’s risible consultation with the California State Bar counts as one.

For now, here are a couple of needed clarifications after watching the announcement video:

1) Contrary to the Task Force’s assertions, voluntary state bar jurisdictions like New York, Indiana, Illinois and Colorado amply demonstrate that lawyer regulation and discipline are not dependent on the existence of a compulsory bar. In those voluntary bar states, the state supreme courts handle those functions.

morguefile.com photo

The State Bar of Arizona, however, would like nothing better than to continue perpetuating an absurd mythology that lawyers can’t be regulated or disciplined or the public protected without a compulsory membership bar association. New York, Indiana, Illinois and Colorado and 14 other states beg to differ. Those voluntary bar jurisdictions have robust regulatory and public protection programs in place without tramping on First Amendment associational freedoms.

Apples and oranges.

Ev Williams | by Christopher.Michel

2) Captain Obvious needs to point out that voluntary bar states are by plain meaning, “voluntary.” Unlike Arizona, lawyers can choose to pay their respective supreme courts only for lawyer regulation and discipline — and forgo joining a voluntary state bar. So what’s the point of comparisons between the cost to practice in Arizona with that of voluntary bar states where membership is optional? Why make comparisons between jurisdictions that seem to share a common denominator such as payment of lawyer registration fees while ignoring the fact that the jurisdictions are distinct from one another.

Besides, in virtually all instances, lawyers practicing in voluntary bar states have lower costs to practice than in Arizona — a fact the Task Force prefers Arizona lawyers not know. Instead, the Task Force speciously plays the false analogy game.

morguefile.com photo

A more accurate comparison is to only compare the court-mandated lawyer registration fees for regulation, discipline and client protection among the jurisdictions. After all, lawyer regulation and discipline are the core public protection functions and ought not to be freighted with the bureaucratic surplusage tacked on by mandatory bar associations for non-mandatory programs and activities. Otherwise, it’s all so much nonsensical claptrap, although the apples and oranges comparisons are conveniently self-serving.

Apples and apples.

morguefile.com photo

Take the voluntary bar state of Indiana, where the supreme court charges $180 per year for regulation and discipline. Membership in the voluntary Indiana bar association is $280 (6+ years of practice). Total cost to practice in Indiana is $460 if an Indiana lawyer also saw fit to join the voluntary bar. Otherwise, the cost to practice in Indiana is a $180 registration fee payable to the Indiana Supreme Court. This is a lower cost to practice than Arizona, which is currently $475 but increasing to $520 by January 1, 2018.

morguefile.com photo

Or take Illinois where lawyers pay the court an annual registration of $382, which includes regulation and discipline but is also larded with mandatory payments to the Lawyers Trust Fund ($95) for pro bono legal aid; Lawyers Assistance Program ($7); Commission on Professionalism ($25) and Client Protection Program ($25). Voluntary membership dues in the Illinois State Bar Association run from “Free” in year one to a cap of $320 in year 20. Certainly, if you combine both the court registration fees and voluntary bar association membership dues, the total cost to practice in Illinois of $702– far more than what lawyers pay in Arizona.

But what the task force conveniently omits is that there’s more than meets the eye concerning membership in voluntary bar jurisdictions. Membership in the voluntary Illinois State Bar Association also entitles members to 15 hours of FREE CLE per year. If you factor what Arizona lawyers pay for CLE, which can run upwards of $600 per year (15 hours X $40 average), the total cost to practice in Illinois is far lower than Arizona.

Registration desk sign | by NHS Confederation

And in Connecticut, another voluntary bar state that on paper looks higher than Arizona with an attorney registration fee of $665, of that amount, $565 is a separate tax that goes to the State of Connecticut Department of Revenue Services — not to the court for lawyer regulation and discipline. Meantime, membership in the voluntary Connecticut State Bar Association runs zero in year one up to $280 for admittees prior to 7/10/10. The total, excluding the $565 state tax, is less than $400 assuming a Connecticut lawyer also opted to join the voluntary bar. Otherwise, they would just pay the hefty $665 annual fee.

In Colorado, lawyers pay an annual attorney registration fee of $325 to cover regulation and discipline. Membership in the Colorado Bar Association is voluntary. New lawyers pay $100 per year and so-called senior lawyers licensed 8+ years pay $230 annually. Assuming Colorado lawyers wanted to belong to the voluntary bar association, their total annual fees would total $555.

 

Finally, in the voluntary bar jurisdiction of New York, the attorney registration fees of $375 payable to the court are biennial, i.e., due every two years. This amount includes $60 to the Lawyers’ Fund for Client Protection; $50 to the Indigent Legal Services Fund; and $25 to the Legal Services Assistance Fund. However, New York lawyers wanting to belong to the voluntary state bar association pay $275 annually if they were admitted prior to 2006. This means that on an annualized basis, New York lawyers pay $462 if they chose to join their voluntary state bar association along with payment to the court for regulation and discipline. This is still less than what lawyers in Arizona pay.

_____________________________________________________________________________________________________

Photos: Registration desk sign, by NHS Confederation at Flickr Creative Commons Attribution;Ev Williams by Christopher Michel at Flickr Creative Commons Attribution.

Read Full Post »

https://upload.wikimedia.org/wikipedia/commons/thumb/5/57/Kennedy-bodyslams-Holly%2C-RLA-Melb-10.11.2007.jpg/399px-Kennedy-bodyslams-Holly%2C-RLA-Melb-10.11.2007.jpg

Photo by, John O’Neill, Creative Commons Attribution-Share Alike 3.0 Unported license

A scathing state auditor’s report released last month body slammed the State Bar of California for rushing disciplinary cases to shorten a longstanding and growing backlog; for settling cases with less severity; and for going $50 million over-budget for a building renovation. The report went on to say the Cal Bar “has not consistently protected the public through its attorney discipline process and lacks accountability.” See “Auditor blasts State Bar for inconsistent discipline of bad lawyers, shoddy finances.”

To the surprise of no one, the Cal Bar accepted the auditor’s findings and even unconvincingly claimed to have already been working on the problems — “before the audit began.” Right! And I was going on a diet when they caught me eating that pint of ice cream.

This is the same state bar Arizona Supreme Court’s on State Bar Mission and Governance inexplicably opted to consult about reforming its governance structure. Sure the California Bar was ordered by the state legislature in 2010 to create a Governance in the Public Interest Task Force. And sure that task force was charged with recommending ways to “improve the existing system so as to best advance the goals of ensuring public protection.” But why would anyone think the California Bar’s ‘reforms’ were an exemplar worth studying?

https://i2.wp.com/5.kicksonfire.net/wp-content/uploads/2015/07/Seinfeld-Newman.gifWhen I heard about it, I thought it was risibly ridiculous that Arizona’s Task Force would look to the bar bureaucrats next door for insights on structural governance reform. Only an out-of-touch legal establishment with blinders on like Arizona’s would come up with that brainstorm. That’s like asking Kim Kardashian about modesty or Donald Trump about hairdos.

A dysfunctional mess.

Stressed businessman

“A consultant is a guy with gray hair so he can appear distinguished and hemorrhoids so he can look concerned.” – Malcolm Berko

For some 30 years — and longer, the California State Bar has been a dysfunctional and deservedly criticized bureaucratic mess. No matter that California Bar leaders have paid lip service to reform for years. The criticisms are legion. In 1997, then-California Gov. Pete Wilson vetoed a two-year fee authorization for the California State Bar because its actions had confirmed the charges of disgruntled members who characterized the bar as “bloated, arrogant, oblivious and unresponsive.”

An earlier audit in 2009 was critical of the Cal Bar over“negotiated salary increases over the past five years, an increase of $12 million in the operation of the discipline system — roughly 5 percent per year — while the number of inquiries declined.” And this was also the time period when unbelievably, a former Bar employee embezzled nearly $676,000 while no one was evidently minding the store. No wonder then-Governor Arnold Schwarzenegger vetoed legislation that allowed the Bar to collect its annual dues.

So this latest critical audit report is no surprise to longtime Cal Bar watchers. One inveterate and knowledgeable critic, the legal ethicist and law professor, Richard Zitrin, even lauds the legislative oversight of the Bar — something some Arizona lawyers gag on as anathema. I’m personally glad that the legislature has a say-so over the bar. Many of the reforms to the legal system that benefit the public came from the legislature, while the bar has repeatedly protected itself rather than the public,” Zitrin commented at the Legal Ethics Forum Blog.

Office Stress 92As for Arizona Court’s Task Force, there’s more embarrassment. Just months after the Task Force consulted with the California Bar’s then-Executive Director Joseph Dunn and per the meeting minutes, not long after Dunn told Task Force members about the Cal Bar’s reforms and how the board was “less contentious” and now “unified” and how the organization was “more focused, professional, and collegial” — Dunn was fired. I guess he didn’t see that one coming.

But at least the Arizona Task Force gave Dunn a round of applause for his presentation. So much for Dunn’s happy Kumbaya talk about the “proactive” California Bar and how its reforms are “the best thing that’s ever happened to the bar.”

People 6043Indeed, according to a Los Angeles Times story, “Accusations fly as State Bar of California leader Joe Dunn fights ouster, the California Bar is “once again beset with conflict, riddled with accusations involving expense accounts and ethics.” Nothing new to longtime critics of the California Bar. One California law professor told the newspaper, “The bar is just further descending into a banana republic. It is totally dysfunctional and should be unraveled.”

And since Dunn, a former state senator and trial lawyer, is not a man to take termination lying down, he is fighting back in the court of public opinion and in county superior court. He filed suit on November 13, 2014 alleging wrongful termination and claimed whistleblower liability and retaliation for allegedly reporting illegal activities and ethical breaches by high-ranking Cal Bar officials. Also see “Five things to know about the State Bar dustup with former director.”

Busy Business Women 40Too bad the Arizona Task Force was so clueless about their next-door neighbors. Otherwise, it might have refrained from a Golden State consultation or ironically enough, according to its latest list of reform recommendations, from mirroring many of the same milquetoast ‘reforms’ adopted by the California Task Force. These underwhelmingly include maintaining compulsory membership; reducing the size of the governing board; changing the board’s name from “governors” to “trustees;” and adding new qualifications, term limits and related procedures.

Then again the legal elites around here don’t have to worry about independent state audits.

Read Full Post »