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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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State Sen. Mike Padden

Kudos to State of Washington lawyers. They’re fighting the latest kick to their billfolds and keisters arising from a 141% licensing fee increase approved by the Washington State Bar Association’s (WSBA) Board of Governors. Last September, the WSBA’s governors voted to raise licensing fees from $325 to a whopping $458 by 2020.

By subsequent Order, the Washington Supreme Court sacramentally blessed the proposed fee increase deeming it “reasonable.” The justices also refused to tie any future increases to a cost of living index as proposed by a member referendum petition.

Ubi Jus Ibi Remedium

https://cdn.morguefile.com/imageData/public/files/h/hotblack/preview/fldr_2008_11_02/file0001565651674.jpgThere’s an ancient legal maxim that for every wrong, the law provides a remedy. But in the real world, even this most aspirational of principles is soon enough found wanting. Therefore, left without apparent remedy, Washington lawyers turned to their state legislature. On February 6, 2017, WSBA member and state senator Mike Padden introduced Senate Bill 5721. The Bill would require the WSBA “to obtain an affirmative vote prior to increasing bar dues for membership.”

SB 5721 is in reaction to the Washington Supreme Court’s Jan. 5, 2017 order — that on its own motion without formal prompting from another party — overruled a December 20, 2016 citizen petition filed by 2,180 Washington Bar members calling for a member referendum to reject the licensing fee increase.

As explained by an email forwarded to me by a Washington lawyer, “The Supreme Court’s order, issued without briefing or discussion, has raised an important constitutional challenge to the Legislature’s power over taxes and government regulation; the Court’s challenge is entirely unnecessary. SB 5721 can resolve that conflict quickly and easily, while protecting the interests of the public and the profession. SB 5721 does not create new law; it does not direct an outcome on the member referendum. SB 5721 simply returns the law to what it was before the Supreme Court changed it.”

The email goes on to pose the following series of questions to Washington lawmakers. “Can the Supreme Court now set taxes and establish public policy through a regulatory body that it indirectly controls? Can it do so without briefing or explanation? Can it do so when those closest to the effects and burdens of such public policy — those who pay for it directly — are denied the use of established procedures to petition the government for redress of grievances, without even a hearing or any other form of due process? Who is to guard the rights of Washingtonians when the Supreme Court itself is the offender?”

In reply, the answer and the anticipated remedy is: “It must be the Legislature, a co-equal branch and author of the State Bar Act.”

Mother’s milk.

cowabungaThe WSBA last tried raising fees in 2012. A member referendum rejected that proposed increase.

But if there’s one more thing that’s certain — besides death and taxes — it’s that money is also the mother’s milk of bureaucrats.1 And all the better when it’s OPM (other people’s money).

It’s no surprise, then, that bar bureaucrats would be: (1) back for more money and (2) looking for an end-around what must be for them irritating member referenda. In their minds, if you’re forced to belong as a precondition to practicing law in the state, you might as well meekly turn over all four cheeks along with your mandatory fees without complaint. It’s your privilege and their right.

The upshot of it all is a state constitutional challenge — not to mention what lawyers like to do best — litigation. A complaint was filed January 15, 2017 that also challenges the Washington Supreme Court’s power to set WSBA licensing fees.

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1Apologies to the late Jesse Unruh for paraphrasing his famous quote about money and politics.

 

 

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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

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Note: The State Bar of Arizona begins online elections tomorrow to elect 11 lawyers from three counties to its 30-person board of governors. I am reblogging this from Transform the Bar: 2014 ARIZONA BAR BOARD OF GOVERNORS ELECTION.

It is the Op-ed I wrote in March for a local business and legal publication, The Record-Reporter, which published it a week after the State Bar of Arizona’s Board of Governors voted to increase member dues. Tomorrow’s vote, which runs until 5 PM, Wednesday, May 21, 2014 is being called one of the most important elections in recent years. Why? Because it can potentially signal at long last, a new direction for the State Bar of Arizona.


WILL ANY OF US EVER LIVE LONG ENOUGH TO SEE AN ACTUAL DECREASE IN DUES? ONE LAWYER DOESN’T THINK SO.

By Mauricio “Mo” Hernandez

March 7, 2014

People 15551“What kind of bar do you want?” asked Arizona Bar Executive Director John Phelps. This was last week when the bar’s board of governors debated whether to raise members’ dues. The board had tried last December. But the largely unannounced below-the-radar vote 12 days before Christmas ended up postponed after brouhaha erupted among members.

The last licensing fee hike was in 2005. Happily for board members who’ve never met a fee increase they didn’t like and who wanted more of the same, the answer to John’s question last Thursday came by 12-11 vote in their favor.

Speaking of rhetorical questions, I have a better one, “How old will I be when the bar lowers dues?” With an annual budget topping $14.6 million, almost 60% of which is compensation and benefits, methinks I’ll be ashes in search of an urn before that ever happens.

Work World 38According to the 2013 ABA Survey, among mandatory bars with more than 20,000 members, Arizona’s budget is already 125% higher than the $11,720,787 average for comparable bars. High budgets notwithstanding, last week’s board meeting also revealed that by the time the total dues increase is fully implemented, the bar projects a $4.1MM surplus. But dues still had to go up.

Hardly a surprise for Arizona lawyers consigned more to stoic resignation than sulky rancor. In four consecutive $15 annual increments starting next year, dues will increase an overall 13% for a total of $60. By 2019, Arizona lawyers will be paying $520 per year. And by separate motion, the board also imposed higher fees for in-house counsel; admissions on motion; pro hac vice; and MCLE late fees.

No matter that Arizona presently finds itself among the ‘leaders’ in highest costs to practice bars in the U. S. On an apples-to-apples dues comparison, Arizona is currently among the top 5 of the country’s 33 mandatory bars behind Alaska at $660 and Hawaii at $522. And not that going inactive saves you, either. Inactive members pay $265 annually, highest among all jurisdictions and equal to or higher than what 20 other jurisdictions charge active bar members.

‘Quo Vadis?’
When a bare majority of the bar’s governors voted to stay the course, they meant a fully-loaded ‘full-service,’ ‘first-class’ bar. That’s an objective made more attainable when others foot the bill. So no need for tea leaves to read or for bones to throw to divine the bar’s high-priced future.
Miscellaneous 603
But does this mean members are forever destined to sing a merry refrain to “Whither Thou Goest?” That was really the nub of what John Phelps asked. Do members want or need an organization trying to do everything from protecting the public from its lawyers; to regulating the profession; to advancing the administration of justice; to educating lawyers; and ostensibly, to enhancing the legal profession? Um, don’t mind the mule going blind, just load the wagon.

Or will members eventually resist the appropriation of limitless resources and instead ask the bar to stop trying to be all things for all people? That’s what happened in Washington State in 2012 when a majority of lawyers objecting to persistent mission creep in a tough economy rolled back dues 25% by referendum. Or should the bar just limit itself to lawyer discipline and licensing? That’s what Nebraska’s high court ordered its bar to do last December. Nebraska dues fell from $335 to $98.

Besides, do all those multi-headed missions even do any good? Someone should find out and I don’t mean having the bureaucratic stakeholders do the asking.

People 1055Looking to the future.
Lawyers increasingly face cost and compensation pressures from clients who are demanding more for less. Meantime the delivery of legal services continues liberalization allowing non-lawyer legal document preparers; non-lawyer owned global law firms; and emerging information technologies to compete in the legal marketplace. At the same time, young lawyers burdened with six-figure student loan debt continue facing a historic oversupply of lawyers in a fearsome job market where only half will find full-time, long-term lawyer employment.

These days, the legal academies and legal establishment pay lip service to the changes in the profession. But in truth, girded by group-think and an abiding faith in the status quo, very few actually do much transformational work. Sure a handful of bars belatedly adopted mandatory mentoring programs purporting to help new lawyers transition into practice. Always better at self-congratulation than self-assessment, those bars will be hard-pressed to measure efficacy. Will those mandatory programs actually provide benefits? Or are they window-dressing hiding one more bar revenue stream?

Several years ago, lawyer and legal ethicist Richard Zitrin criticized his California bar in a different context for its then perceived lapses. He observed, “On the other hand, the State Bar has unfortunately long been more interested in how things look rather than how they really are.” Here in Arizona, though, when it comes to the high cost to practice, count on both being true. A full service bar looks expensive and it really is.


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Top Ten States by Bar Fees                                  (Click to enlarge) Not satisfied with already being near the top among highest U.S. cost-to-practice1 mandatory bar associations, on February 27, 2014 the Arizona Bar’s Board of Governors (BOG) voted 12-11 to hike annual member dues by 13% to $520 by 2019. If at first you don’t succeed . . . . Politicians 19The BOG first tried raising dues in December by 22%. But it was stymied when word got out about the stealth vote 12 days before Christmas. On being outed, the BOG regrouped and moved to postpone the vote till February. It then spun the delay as a self-congratulatory bid at notice, transparency and due process. Unfortunately with more time to deliberate, the BOG also came up with a gambit. It dropped its initial $100 increase motion in favor of one that raised dues by ‘only’ $60. But there was a ‘catch.’ The lower increase was tied to an automatic escalator based on the consumer price index — as though what a state bar does has anything to do with the nation’s basket of consumer goods and services. man face 6But fortunately, brakes were applied to the escalator. But as for the rest, “Il dado è tratto” as they still say in Italy long after Julius Caesar uttered Alea iacta est.In other words, “The die was cast.” When you’re talking fees, state bars always think it’s time to render to Caesar. The rationale. So given the Bar’s two-nostrils worth of rationale, it was never a question of “if” — but of “when” and by “how much.” Wildlife & Animals 2247First, they’d argued the last dues increase was in 2005 as though there’s a gestation period for raising fees. And second, like that proverbial bushy-tailed chicken-counter in the hen-house, an increase was necessary. Or so said a supposed cost-analyzing “Program Review Committee” made up mostly of Bar staff and management. The committee took all of 9 hours over 3 months to do its multi-million dollar operational number-crunching and qualitative analysis. https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/1/1f/Langtry_cartoon.png/161px-Langtry_cartoon.pngSo to the surprise of no one, the committee pronounced there wasn’t much to cut from a bloated $14.6 million budget — not if bureaucratic stakeholders wanted to keep gilding the Bar’s ‘full-service’ lily. And as usual, the largely complaisant BOG went along. Muddled confusion. One thing the Bar’s spinmeisters also proclaimed was that Arizona’s fees are only tied for tenth highest among bar associations. But try running that declaration to ground. When it comes to decoding what and how much lawyers pay to practice in a given jurisdiction, it’s frankly difficult. To start, you need something better than a secret decoder ring from a cereal box. It’s a muddle. You have to parse, poke and ponder2 through data most of which is hidden behind expedient pay-walls. Or else you glean what you can from the Web whether the ABA or a state bar group. Cartoon Characters 57Adding to the confusion, surveys lump mandatory bars (where you have to pay-to-play) together with voluntary jurisdictions. Of course by mixing the apples with the oranges, it conveniently distorts the cost comparisons. And as long as we’re talking produce — it also helps keep the mushrooms fed and in the dark. Don’t ask why voluntary bars are bunched in with the mandatory associations. It’s one thing to discretionarily and voluntarily pay high fees and quite another to be compelled if you want to keep more than snausages on the lawyer table. Cost to Practice Rankings. People 7054Ranking comparisons are as clear as mud. The last time I looked, the prior rankings were based on 2010 ABA surveys and the had Connecticut and Tennessee at No. 1 and No. 2, respectively. Both are voluntary bar associations. Both have non-bar-related fees that hurt. But how was Georgia in third place at $536 when according to newer data compiled in 2013 by New Jersey’s Office of Attorney Ethics, Georgia’s “Maximum Mandatory Annual Fee” is $242? International Survey of Attorney Licensing Fees And take Connecticut where voluntary annual membership in the bar association costs $280. Although you’re not required to join to practice, Connecticut’s Department of Revenue Services still collects an annual attorney occupational tax of $565, which goes to the state general fund not for lawyer regulation. The state’s high court then tacks on a yearly $110 payment to the Client Security Fund. Work World 14In Tennessee, also a non-mandatory bar state, $400 of the $570 fee lawyers pay is a “Professional Privilege Tax.” And like Connecticut, that money goes to state general revenue, not specifically to any bar-related function or to the Court. And in Texas where membership is mandatory to practice, there’s a similar occupational tax that skews the cost-to-practice fees number higher. In the Lone Star State, $200 out of the $510 Texas lawyers pay to practice goes to state revenues not to fund the legal establishment. International Survey of Attorney Licensing Fees - Chart 2 Distinctions without a difference? Who cares if Caesar is the state, the court, or the bar association? It’s all money flowing out of lawyer pockets. But it matters when mandatory bars conveniently use non-decoded figures as convenient pretexts to justify high mandatory licensing fees. Children 1099So to make some semblance of the mud in the muddle, on a like-for-like dues comparison basis, Arizona is currently among the top three of the country’s 33 mandatory bars behind Alaska’s $660 and Hawaii’s $522. And going inactive in Arizona hardly saves you, either. Inactive Arizona Bar members pay $265 annually, highest among all jurisdictions and equal to or higher than what 20 other jurisdictions charge active bar members.3 Animals 2035And according to the most recent ABA Survey, among mandatory bars with more than 20,000 members, Arizona’s budget is 125 percent higher than the $11,720,787 average for comparably sized bars. And high budgets notwithstanding, by the time the latest dues increase fully implements in 2019, the Bar itself projects about a $4M surplus. An almost $15 million budget, after all, wasn’t nearly enough money. What’s more by separate motion, the BOG also got approval to impose higher fees for in-house counsel; admissions on motion; pro hac vice; and late fees for mandatory annual filings like continuing legal education. Animals 702But at least there’s potential good news for Arizona lawyers. The Bar holds elections to its board of governors in May. So when they get their online ballots and remember the incumbents who voted for even higher costs to practice, maybe members will also recall the moral in Aesop’s Fox and Stork fable.  As the stork told the fox, “One bad turn deserves another.”   _______________________________________________________ [1] See International Survey of Attorney Licensing Fees data compiled July 1, 2013 by Office of Attorney Ethics of New Jersey. [2] Oregon fees include a $30 “diversity and inclusion assessment” and $45 for the client security fund (CSF), leaving a balance of $447. Comparable cost is actually less but close to Arizona’s $460 fee, $10 of which is for the client protection fund (CPF)). But Oregon also requires members to buy high-priced co-op professional liability insurance, which runs $3,200 per year even with modest coverage limits. There’s no deductible or penalty premium for purportedly high risk practice areas. In Hawaii, $34 is allocated to the Attorney Assistance Program and $30 to CSF. The remaining $440 is actually less than but very close to Arizona’s current fee of$460. Minus $65 for Legal Aid, the comparable cost in Texas is actually $235, considerably less than Arizona’s fees. Fees in Wisconsin include $50 for Legal Aid; $11 for a Mandatory CLE Fee; and $20 for CSF. That leaves $379, a comparable cost also less than Arizona’s fees. Based on all this, Arizona is actually ranked third in cost to practice. And while Alaska is Number One, it only requires 3 hours of CLE compared to Arizona’s 15. “Active Bar members are required to earn 3 ethics credits, encouraged to earn 9 additional credits, and required to file an MCLE Report each year.” See Alaska Bar Association MCLE at https://www.alaskabar.org/servlet/content/mcle.html. This effectively makes the cost lower to practice in Alaska than in Arizona. But then I’m adding bananas here to the apples and oranges. (Hat tip to D. M. Quinterri, Esq. for her additional data research!) [3] “International Survey of Attorney Licensing Fees” data further notes Arizona has the highest fee for inactive attorneys. Op. cit. _________________________________________________________ Photo Credits: Caricature from Punch magazine of Lily Langtry. From the Punch Christmas Issue, December 1890, “Punch Among the Planets” at Wikipedia Commons, Public Domain, available from Project Gutenberghttp://www.gutenberg.org/etext/13244

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“I’d like to see lawyers for god’s sakes say something about the RULE OF LAW and doing what we came to do – ENHANCE FAIRNESS AND JUSTICE FOR ALL,” a lawyer friend wrote me the other day.

Her words resonated with me on several levels. First there was that odious discriminatory bill passed by the Arizona Legislature. Dim-witted Governor Jan Brewer dallied, deliberated and finally vetoed it because as one pundit properly put it — because she was “more afraid of the Chamber of Commerce than the Tea Party.” Rogue Columnist Jon Talton had one of the better assessments about why crazy stuff like this keeps happening here in “Satan’s crotch” at “SB 1062: The aftermath.”

Spirits 19Second, I’ve been musing about justice, fairness and unfairness because I’m halfway through Houston death-penalty lawyer/professor David Dow’s The Autobiography of an Execution.

Read this excellent book and you can’t help but dwell on systemic unfairness and as a lawyer — about Dow’s statement, “Sometimes I think I became a lawyer because I believe rules matter, but I suppose I could have the cause and effect reversed.”

Author of six books, Dow is a strongly opinionated death-penalty opponent. He’s also litigation director at the Texas Defender Service and founder of Texas’s oldest innocence project, the Texas Innocence Network.

Scales in blue light uid 1“I used to support the death penalty,” Dow writes. “I changed my mind when I learned how lawless the system is. If you have reservations about supporting a racist, classist unprincipled regime, a regime where white skin is valued far more highly than dark, where prosecutors hide evidence and policeman routinely lie, where judges decide what justice requires by consulting the most recent Gallup poll, where rich people sometimes get away with murder and never end up on death row, then the death-penalty system we have here in America will embarrass you no end.”

“The world isn’t fair, Calvin.”

“I know Dad, but why isn’t it ever unfair in my favor?”Bill Watterson, The Essential Calvin and Hobbes: A Calvin and Hobbes Treasury

Third, ever since getting tossed out of 8th grade with a number of my classmates for what we thought was a principled stance but which the nuns strongly disagreed, I’ve tried to reconcile and admittedly without much success Calvin’s view of the world’s unfairness. Throughout the rest of my academic life and even into my corporate working life, I’ve weighed the merit and demerit cards life and circumstances have passed out.

So I’ve had this thing about fairness and unfairness for as long as I can remember. It matters most where the moral equities lie, especially now as a lawyer.

ButPeople 38447 I’ll not credit a lifelong creed with animating a desire to be a lawyer. That’s a romantic notion but it wouldn’t be true. No, a long extent and inherent disposition toward skepticism — even cynicism would forestall such idealized foolishness. Indeed, of cynicism I often joked that when I came out of the womb — I slapped the doctor first.

navelAnd finally, the past few months I’ve done more than contemplate my navel about this topic. Besides work and a personal life, I’ve been busy combating an unfairness just foisted on Arizona lawyers by our ‘friendly state bar.’

The mandatory bar and specifically, its board of governors finally succeeded in doing what they first tried in December. Last week they voted to raise our annual attorney licensing fees. No matter that they were already among the highest in the country. The easiest money to spend is always somebody else’s.

And unhappy with having to deal with the complaints of a restive lawyer hoi polloi, at one point the board even tried without success to tack on an automatic cost-of-living escalator tied to the consumer price index — as though what state bars do has anything to do with the price of milk and bread in Peoria — Arizona.

Objects 1324Now I’ll concede that compared to losing life, liberty or significant property interests, a dues increase is obviously a trifle, a thimble’s worth of irritation. “It’s not like we’re trying to cure cancer,” a colleague quipped.

But all the same, it was the same kind of bullshit unfairness that’s rankled and inflamed passions my whole life. I’ll have a lot more to say about it later.

But for now, I think another admonition from Christopher Hitchens is appropriate, “Never be a spectator of unfairness or stupidity. The grave will supply plenty of time for silence.”

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Photo Credits: “Fairnesszone,” by PatrickSeabird at Flickr via Creative Commons-license requiring attribution; “Calvin 12,” by Frankie Kangas at Flickr via Creative Commons-license requiring attribution.

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