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Posts Tagged ‘bar reform’

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.” 

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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.

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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.

 

 

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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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Suspending for a heartbeat my natural skepticism when it comes to Arizona’s legal establishment, especially its ‘friendly state bar,’ the following announcement might be good news. But I’m not holding my breath.

By administrative order of Arizona’s highest court, a “Task Force on the Review and Governance of the State Bar of Arizona” Review the State Bar’s Role and Governance” was created July 29, 2014.

j0341699The purpose of the Task Force is to “examine the Rules of the Supreme Court on the mission and governance structure” and to recommend changes — albeit “if needed,” including but not limited to the following:

“a) Does the mission of the State Bar need to be clarified or modified?

b) Is the governance structure adequate to efficiently and effectively govern and carry out the duties of the Board?

c) Are Supreme Court Rules in the following areas related to Board structure and governance duties adequate to best serve the Board’s primary mission of protecting the public?

i. Qualifications for membership on the Board of Governors;

ii. Appointment, election and removal of members of the Board of Governors;

iii. Term limits for members of the Board of Governors;

iv. Election process;

v. Board of Governors size and composition; and

vi. State Bar leadership structure and composition.”

People 3050I’ll be monitoring the Task Force’s work, particularly whether the court does anything to arrest the serial reelection of governors (some, for example, have been on the Board for almost 20 years), see “Elvis never leaves the building without term limits;” or to rein in the unwieldy size and structure of the 30-member Board, e.g. see “Inside the tent: state bars and management by rugby scrum;” or to rethink the Bar’s exclusive consumer-protection mission, see “That time of year again . . . rendering to Caesar his annual bar dues.”

I have zero expectations on the latter as the court’s order makes abundantly clear the mission and governance review means “to ensure that they continue to best serve the public interest.” After all, the court adds: “The integrated State Bar is intended to regulate the legal profession to protect the public” [presumptively — from its lawyers].

But don’t misunderstand. Serving the public interest is critically important. Problem is, there are hordes of Arizona lawyers still clinging to the long discarded but quaint notion that like a trade association, the Arizona Bar also expressly serves members’ interests.

So perhaps a salutary outcome of the Task Force’s work will be to finally disabuse them of that delusion. For more about “the tension inherent between the two incompatible roles of our integrated bar, the governmental regulation role and the trade association role,” see David Cameron Carr’s insightful discussion of the California State Bar’s recent governance changes at “The Great Public Protection Perpetual Motion Machine.”

So thanks to its public protection marching orders, deliberations won’t start with a blank slate. Findings and recommendations are due September 1, 2015.

Everything’s dandy.

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The court’s order may have also caught some of the true believing kool-aid drinkers on the Board of Governors by surprise, particularly if it was sprung on them during the Board’s just-concluded annual retreat boondoggle.

Rich Life 20Many governors, after all, like a bloated bureaucratic “full service, first class” bar. They savor their perquisite-filled status quo and gubernatorial privileges, including Bar-provided free continuing legal education. So despite the increasing restiveness of members, they think everything’s dandy the way it is.

But dandy or not, the court wants the review because of changes to the “legal services environment” along with growth of Bar membership and “demands placed on the State Bar.” I can only imagine what the last one means — but it sounds tailor-made to justify more fee increases.

Computer Hackers 22And coincidentally, there’s also another Arizona Supreme Court 13-member committee looking at “whether Arizona ethical and other regulatory rules should be amended because of the changing nature of legal practice in a technologically enabled and connected workplace and the growing trend toward multistate and international law practice.”

You’d almost think there’s something in the firewater hereabout, given the spate of rule reviews underway. But I think this other arose due to changes proposed by the American Bar Association’s Commission on Ethics 20/20. Indeed, other state bars have begun similar reviews. A copy of the June 17, 2014 administrative order is available here. And of course, I’ll be posting about that committee, too.

The bad news.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/6/69/Ansdell_Richard_The_Gamekeeper.jpg/365px-Ansdell_Richard_The_Gamekeeper.jpgBut as for that task force on mission and governance, don’t expect meaningful reforms. Thirty-six percent of the task force is composed of former members of the Bar’s board of governors. Indeed, four of these five former governors are also past state bar presidents, including the immediate past president. He was instrumental in ramrodding through an unnecessary 13% dues increase to preserve business as usual. Moreover, the “consultant” to the Task Force is the Bar’s current CEO. A mission and governance review with such guiding lights is like hunting with the game warden.

Still, I guess it’s not quite as bad as the composition of the committee reviewing the Michigan State Bar’s purported use of dues for ideological activities. In Michigan, as one critic pointed out in February, “the task force is stacked with current and former state bar officials.”

At least this Task Force has more diversity. It includes a former state university president, a presiding judge, a libertarian from the Institute for Justice and even a former public utility lobbyist. And with the Bar’s prosecutorial mindset, no surprise it also includes a former state attorney general and a couple of former cops.

But while the Task Force appears to have seemingly covered the politically correct diversity dimensions, e.g., race, ethnicity, gender, sexual orientation, age, etc., it’s missed a big one: there are no dissidents. Who will voice the saeva indignatio?

Yet understandably, in light of the Bar’s disposition toward group-think, why invite oppositionists? No matter, then, what Christopher Hitchens brilliantly wrote in Letters to a Young Contrarian that “. . . in life we make progress by conflict and in mental life by argument and disputation.” Of all people, you’d think lawyers would know that.

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Photo Credits: Day 121, at Flickr Creative Commons attribution share and share alike license by Bastian; The Good Shepherd, by Waiting For The Word at Flickr Creative Commons-license requiring attribution; Henri Brispot Gourmand.jpg at Wikipedia Commons, public domain; Gamekeeper by Richard Ansdell at Wikimedia Commons, public domain.

 

 

 

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