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Posts Tagged ‘Keller v State Bar of California’

In deciding Janus v. AFSCME for Mark Janus today, the U.S. Supreme Court by a vote of 5 to 4 overturned Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The ruling was widely expected.

In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has proved unworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed “categories of expenses’ and the amount in each category “said to be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Interestingly, these vague, imprecise expenditure declarations frankly bear a strong resemblance to the unhelpful high-level expenditure disclosures provided by mandatory bars such as Nevada and Arizona.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood “undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, File:Aimee Semple McPherson-AngelusTemple Sermon 1923 01.jpgincluding the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

So expect reverberations at the nation’s mandatory bar associations — whether engendered voluntarily or mandated by external forces.

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

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Credits: Thumbs up for PYPS, by Alex Luyckx at Flickr Creative Commons Attribution; Paul gives the thumbs up, by Mikey at Flickr Creative Commons Attribution; normal, happy, sad, by David Pacey, Flickr Creative Commons Attribution; Aimee Semple McPherson. Wikimedia Commons, public domain.

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The Oregonian reported last week about the latest mandatory bar kerfuffle. This time, it involves a signed statement published in the Oregon State Bar’s April 2018 house organ, The Oregon State Bar Bulletin. It was signed by the bar’s governing board president, president-elect and its CEO and ran alongside a statement by several so-called special interest and specialty bar associations. You can read both statements here.

According to the news story that ran April 24, 2018 in the state’s largest newspaper, “Two signed statements in the latest Oregon State Bar bulletin – one by the bar condemning speech that incites violence and the other by non-bar specialty groups decrying the rise of the white nationalist movement under President Trump — have drawn fire from some lawyers aghast that the bar would allow such political statements.” The ABA Journal also has a story at “Statements by Oregon State Bar and specialty groups draw fire.”

Playing politics and ideology with mandatory monies.

Mandatory bar associations like having it both ways. In mandatory bar states like Oregon, these associations force lawyers to join and fund their activities as a precondition of earning a living. U.S. Supreme Court case-law, however, imposes certain restrictions on these forced-membership associations. They can constitutionally fund activities out of the mandatory dues of all members only if the activities are germane to the goals of regulating the legal profession and improving the quality of legal services.

But being masters of the self-serving, parsed interpretation, the associations generally have a field day gumbifying those goals into loopholes large enough to drive a dump truck through. This is why the temptation remains strong to use mandatory dues to fund activities even if they’re not germane to those regulatory and quality improvement goals, including those of an ideological or political nature. In the rare instances when they’re caught being political or ideological, they solely get to calculate the pittance refunded to objecting members.

Is it any wonder mandatory bars can’t resist their unaccountable access to and nontransparent use of mandatory dues to take positions on public policy matters — even controversial ones? Supreme Court restrictions or not, they depend on every cent of those mandatory member monies even while taking the latitude enjoyed by voluntary bar associations to weigh in on public policy.

Unlike mandatory bars, voluntary bars are free of First Amendment and Keller v. State Bar of California restrictions and can therefore comment and even advocate on political or ideological concerns. However, if members don’t like a position that a voluntary bar association takes, they aren’t forced to remain members.

This, then, is the crux of the mandatory bar problem. If members want to earn a living as lawyers — they might qualify for a nickel ninety-five refund if they have the nerve to complain about non-germane dues use — but they can’t get out.

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Credits: Donald Trump caricature by Donkey Hotey at Flickr via Attribution share-alike attribution license.

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Business 1381How fitting that following an almost hour debate, the very last bill that passed out of the Arizona House at 5 o’clock last Thursday was historic legislation to protect the free speech rights of Arizona attorneys. HB 2221 passed 31-29. Among other provisions, the bill requires that mandatory dues collected by the State Bar of Arizona be used only for regulatory functions and not for nonregulatory activities like it does now. The bill now moves to the Senate.

Attorneys in Arizona must currently belong to a trade association and pay mandatory membership dues as preconditions to earning a living in their chosen profession. Arizona attorneys are the only Arizona professionals bound by such an expedient. What makes this problematic is that the State Bar uses compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes that not all members agree with.

Artists 93The Bar says it “focuses on protecting the public by enhancing the profession, not politics.” In reality, the Bar has an odd way of showing it’s apolitical. Pay no attention, for example, to Bar executives and its lobbyist fighting legislation to eliminate the Bar’s inherent conflict of interest manifest in the claim to protect the public from lawyers while contemporaneously serving lawyer interests.

Last year despite the Bar’s steadfast ongoing opposition to voluntary bar legislation, Bar CEO John Phelps told the ABA’s Bar Leader Magazine, “If we can’t answer the questions about why a mandatory bar is a better model for folks in Arizona, then we ought not to be a required bar.”

The Bar’s resistance has everything to do with preserving a model that protects its bureaucratic self-regard. The loss of most of its mandatory dues monies would mean a sea change for its blithesome bureaucrats.

State Bar’s Free Speech.

Politicians 81Besides reaffirming state supreme court authority over lawyer regulation under the Arizona Constitution, HB 2221 also respects the State Bar’s free speech rights. It does not restrict the Bar’s ability to lobby or take political or ideological positions so long as those activities are voluntarily funded by attorneys. This provision is key because the bar is again distorting facts to serve naked self-interest.

Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar cannot compel attorneys to fund the Bar’s lobbying activities unrelated to regulating the practice of law. But nothing in Keller prevents the State Bar from collecting voluntary funds from attorneys to engage in any political activity that it wants. Just because the State Bar presently has a policy that it will not engage in political activities beyond those authorized in Keller, there is nothing to stop the Bar from changing that policy tomorrow. As a result, HB 2221 has no bearing on whether or not the State Bar will expand the array of political activities it chooses to engage in with voluntary funds.

Chutzpah redefined.

Game Show Hosts 9And in what can best be characterized as redefining that classic definition of Chutzpah, the Bar has begun audaciously arguing that a vote against HB 2221 would protect attorneys’ First Amendment rights! Why? Because Bar members are supposedly currently protected by U.S. Supreme Court precedent limiting the political speech of mandatory bar associations. The precedential case is Keller v. State Bar of California that held that mandatory membership bar associations can use members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

FunHouse 119Turning the argument on its head, the State Bar is saying with a straight face that it’s now protecting free speech by lobbying against legislation that protects free speech. It’s a brazen rephrasing: “I was against free speech before I was for free speech.”

Heavens Angels 87Were it truly interested in safeguarding the free speech rights of its members, the Bar would have by now taken affirmative steps and much more meaningful ones than its pious protestations of so-called ‘Keller-purity.’

Moreover, how does lobbying against voluntary bar legislation that has nothing to do with intruding on the Court’s lawyer regulation authority or with improving the quality of legal services satisfy the criteria under Keller? It doesn’t.

Instead, the Bar complies with Keller under the broadest of interpretations. Anything and everything goes so long as the activities encompass “core interests of the mandatory bar, interests of the legal profession, improve the administration of justice, or promote advancements in Arizona jurisprudence.” And oh, just in case, there’s the ‘catch-all’ —  “any other activity authorized by law.” See Criteria so expansive you could drive a dump truck through it.”

Assuming members ever find out about objectionable activities — and only after the fact — the Arizona Bar says members have “the option of challenging the Bar to ensure that any position taken is within the Keller guidelines.”  This is a purgative past the point of needing it. What matter if a member objects to the Bar’s lobbying against legislation protecting attorney free speech if the objection occurs after the lobbying has killed the legislation? It’s a nickel-and-dime ‘remedy’ so not much of one.

No separation of powers problem.

Wildlife & Animals 5041The State Bar’s last-ditch efforts to block the bill in the House last week also centered on alleged separation of powers grounds. On the House Floor, Rep. Randall Friese, D-Tucson, a leading opponent argued that the Legislature was overstepping its bounds. He told a local newspaper, “I’m afraid this bill specifically directs the Supreme Court to do certain things. And I’m still concerned this body cannot.”

But this is incorrect as was pointed out in a well-crafted separation of powers legal memorandum that maintains “HB 2221 is consistent with the Legislature’s authority to protect constitutional rights and assure transparency in government, while respecting the Supreme Court’s role in attorney regulation.”

Friese is an Arizona physician. But unlike Arizona attorneys, he is not required to join a professional trade association to practice his profession. His only precondition to earn a living as a doctor is to pay the Arizona Medical Board $500 every two years for regulation and licensing.

Unfortunately, ‘what’s sauce for this goose is not sauce for that gander.’ In spite of the obvious intellectual inconsistency, the good doctor is not dissuaded. He’ll continue carrying water for the Bar against any legislation that puts lawyers on the same footing as his profession.

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Home Improvement 26Hat’s off — I think — to State Bar of Arizona President Geoff Trachtenberg for exercising his free speech rights and speaking his own mind. Last month, Trachtenberg emailed the General Counsel to Arizona Governor Doug Ducey to express his “candid thoughts” about why Clint Bolick, one of the nominees to the state’s highest court, was “clearly not the best candidate for the job.” And because Trachtenberg wasn’t expressly wearing his state bar presidential mantle when doing so, I guess folks can’t say he was speaking for the state’s compulsory membership bar.

But the point is hardly incidental. It goes to the heart of First Amendment compelled-speech jurisprudence under Keller v. State Bar of California.  A mandatory bar requires lawyers to join and pay dues as a condition of practicing law in the state. So when a mandatory bar spends member dues on speech that the member opposes such as lobbying against a judicial candidate, the state action that compels payment of dues infringes on that member’s First Amendment rights.

Keller came about when at its 1982 convention, State Bar of California President Anthony Murray derided U.S. Senate Candidate Pete Wilson for urging the recall of Chief Justice Rose Bird if the California Supreme Court overturned the “Victims’ Bill of Rights.” Murray’s speech and resulting bar resolution prompted 21 California lawyers to sue their state bar. Unfortunately for Murray and the state bar, Wilson went on to become a U.S. Senator and eventually Governor of California.

Incongruously, parsing a distinction between private speech and organizational speech doesn’t necessarily provide a safe harbor. See what happened last year to Nevada State Bar President Alan J. Lefebvre who thought he was expressing only his opinion not the Nevada Bar’s when he editorialized on same-sex marriage in the bar’s magazine.

Trachtenberg’s communication was one of a number of letters, emails, and phone calls from Arizonans and from out-of-staters weighing in on Bolick’s candidacy and that of other nominees. As reported by The Yellow Sheet Report (paywall) over 600 critics’ and supporters’ letters and emails sent to the governor and the Commission on Appellate Court Appointments about the state supreme court nominees were just released by the governor’s staff. Having seen Trachtenberg’s email, give the man props for candor — if not for circumspection inasmuch as Bolick was widely regarded as the front-runner.

Speaking for himself and not from the State Bar of Arizona Presidential dais, Trachtenberg opined that state supreme court candidate Bolick was “interested in bringing his brand of justice to the Court — not merely “applying the law.””

Trachtenberg also went on to add that Bolick appears to be more interested in shaping law rather than applying it and “would be better suited to being in the legislature.”

He wrote, “While I’ve not reviewed the applications of existing and former Supreme Court justices, one has to wonder if there has ever been a nominee for Arizona’s highest court who similarly lacks meaningful judicial or practical experience, let alone an actual justice.”

Oops! On January 6th, Governor Ducey announced his appointment of Clint Bolick to the Arizona Supreme Court. In making his first gubernatorial state supreme court appointment, Governor Ducey explained in a press release that “Clint is nationally renowned and respected as a constitutional law scholar and as a champion of liberty.

“He brings extensive experience and expertise, an unwavering regard for the rule of law and a firm commitment to the state and citizens of Arizona. I’m confident Clint will serve impartially and honorably in this important role.”

Prior to his elevation as Arizona’s newest high court justice, Phoenix lawyer Bolick worked as Vice President of Litigation for the Goldwater Institute.

Home Improvement 88Based on past practice, the high court’s newest justice gets assigned as the supreme court’s liaison to the Arizona Bar’s Board of Governors.

Wondering aloud — that first board meeting presided by bar president Trachtenberg with the new justice in attendance might be awkward. But no doubt there’s fence-mending in the offing.

 

 

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On Monday morning, January 11, 2016, the U.S. Supreme Court will hear a case with potentially positive impact on the First Amendment rights of lawyers.

The case is Friedrichs v. California Teachers Association. Except it’s not a case about lawyers. It’s a union case that’s widely described as “devastating to public-sector unions.

The questions presented in Friedrichs are:

(1) Do public-sector agency shop arrangements violate the First Amendment’s protections for freedom of speech and assembly?

(2) Does the First Amendment prohibit the practice of requiring public employees to affirmatively opt-out of subsidizing nonchargeable speech rather than to affirmatively consent?

But depending on who you ask, a decision for the petitioners would either vindicate workers’ First Amendment rights or in the view of elite lawyer doomsayers “would have a profoundly destabilizing impact on bars all over the country.”  The latter declaration is what 21 former Presidents of the District of Columbia Bar claimed in their amicus brief asking that Abood v. Detroit Board of Education, 431 U.S. 209 (1977) be left “undisturbed.”

Petitioners Rebecca Friedrichs and her co-plaintiff teachers want the Court to overrule Abood. But it’s not because of concerns over the constitutional rights of lawyers even though like the petitioners, they, too, are forced to fund speech they oppose in order to earn a living in their chosen profession. Instead, the petitioners want the Court to rule that the free speech rights of non-union members ought to trump any obligation to contribute to the costs of representation.

In typical exaggerated bull and bunkum, mandatory bar stakeholders contend that a ruling against the California teachers union “would very likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their mandatory bar dues. Such lawsuits would severely distract this country’s thirty-two integrated bars from their critical work “serv[ing] the‘State’s interest in regulating the legal profession and improving the quality of legal services.’”

https://upload.wikimedia.org/wikipedia/commons/thumb/2/29/High_rider_CicLAvia_2010.jpg/486px-High_rider_CicLAvia_2010.jpg If the petitioners prevail, alarmed union leaders believe more workers would become so-called “free riders.” The result could lead to a drop in union membership and revenue that could not only harm existing collective bargaining contracts but change election year dynamics.

Amy Howe at Scotus Blog has a plain English explanation of the case at “Justices return to dispute over union fees for non-members: In Plain English.” Also see “Public Unions Face High-Court Hurdle.”

Why mandatory bars should be worried.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f2/Captain_of_the_nine_%281912%29_%2814566361667%29.jpg/402px-Captain_of_the_nine_%281912%29_%2814566361667%29.jpg Abood is a case that the nation’s 32-mandatory membership state bar associations rely on to continually impinge on the free speech and free association rights of their members. Abood supports an overly broad interpretation of ‘permissible’ mandatory bar First Amendment encroachments under Keller v. State Bar of California, 496 U.S. 1, 12 (1990). But contrary to what the self-interested past bar presidents said in their brief, Keller allows mandatory bar associations to compel dues only for the narrow purpose of improving the practice of law through the regulation of attorneys.

I won’t dive further into the weeds to analyze Friedrichs beyond recommending you read the arguments of the D.C. Bar and the Goldwater Institute, which also filed its own amicus brief. In part, the Goldwater Institute summarizes its position as follows,

“This Court has always required that chargeable
expenditures related to improving the quality of legal
services also be connected to regulating the legal
profession. Lathrop v. Donohue, 367 U.S. 820, 843
(1961); Keller, 496 U.S. at 14; United States v. United
Foods, Inc., 533 U.S. 405, 414 (2001); Harris v.
Quinn, 134 S. Ct. 2618, 2643 (2014). Mandatory bar
associations and lower courts have mistakenly concluded
that Keller identified two purposes that allow
bar associations to compel membership: “improving
the quality of legal services” and “regulation of lawyers.”
See, e.g., Kingstad v. State Bar of Wisconsin,
622 F.3d 708 (7th Cir. 2010). Misconstruing Keller as
permitting mandatory bars to compel dues for two
broad and distinct purposes harms members’ First
Amendment rights and places Keller in the same
dangerous territory as Abood by leading mandatory
bars to routinely spend coerced dues on a broad range
of political and ideological activities.”

Hubris

https://upload.wikimedia.org/wikipedia/commons/thumb/1/1e/Punch_%281841%29_%2814802616693%29.jpg/472px-Punch_%281841%29_%2814802616693%29.jpgWhat I will opine about is the irony of the District of Columbia Bar taking the lead. Talk about monumental hubris and unmitigated gall.

For one, the D.C. Bar rivals the State Bar of Arizona in its self-congratulatory capacity and unabashed resistance to reform. But what’s especially rich is the poetic justice that could result if the Court also revisits Keller and rules that mandatory bar associations can only compel dues for lawyer regulation and not for non-regulatory purposes like building monuments to itself.

The D.C. Bar is buying an expensive new office monument for itself (just like the Arizona Bar did several years ago). On its website, it maintains that, “ownership of the building allows the Bar to save more than $25 million over 30 years versus renting—money that can be used to find more ways to provide member value while maintaining the Bar’s position in the lowest quartile of dues rates in the country. Doing more. Managing costs. Driving direct member value. That’s what the new home affords the Bar.”

The D.C. Bar is one of the largest in the United States. A preponderance of its members live outside the District of Columbia. As longtime D.C. Bar critic Mike Frisch editorializes at D. C. Bar Wants To Raise Dues Ceiling” about the D.C. Bar’s “lowest dues for a bar its size,” he says it’s “a disingenuous dodge that ignores a fact obvious to anyone who understands the true composition of the D.C. Bar.  D.C. has more out-of-state lawyers than anywhere else. They pay full dues for no service. They are the Bar’s hidden endowment and they fund the profligacy.”

And now thanks to a court order signed last month, as of July 1, 2016, the dues ceiling will be raised from $285 to $380 for D.C. Bar members. At “Happy New Year D. C. Bar: Pay Up!,” Frisch complains, “Now the best-paid bar employees in America can increase their salaries, travel to every domestic and international bar-related party and buy themselves a fancy building with primo views, all at the expense of a membership that had no say in the process.”

No wonder the entitled legal elites at the D.C. Bar got so worked up about Friedrichs. But so should the nation’s 31 other mandatory bars.

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Credits: Morguefile.com, no attribution, High Rider, by Downtowngal at Wikimedia Commons; Captain of the Nine, at Wikimedia Commons, via Flickr Creative Commons; Punch, at Wikimedia Commons via Flickr Creative Commons.

 

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Samoan man in Hawaii | by foot fingers

Voluntary is ‘mo bettah.’

 

 Voluntary bar jurisdictions:

  1. Have a longer history than mandatory bar jurisdictions. The so-called integration movement didn’t start until 1913. That’s when the now defunct American Judicature Society‘s Herbert Harley motivated by the goals of overcoming low voluntary membership rolls; increasing revenues; reducing fragmentation; and enhancing professionalism; adopted bar unification as part of the Society’s law reform movement. According to research by Professor Theodore Schneyer, “voluntary state bar memberships in the 1920s included only 10% to 30% of the bar.” Parenthetically, predating the creation of the American Bar Association by 4 years and besting the New York State Bar Association by 2 years, the Iowa State Bar Association was formed in 1874 and claims to be “the oldest voluntary state bar association in the United States.” 18 jurisdictions in the U.S. are still voluntary. And to this day, voluntary bar membership in Iowa approaches 90%;
  2. Scandalized | by CarbonNYC [in SF!]Tend to have lower overall costs to practice; See Fact Check;

  3. Accomplish the public-protection goals of regulating discipline, managing bar admission, ensuring ethical standards, and registering lawyers, without integrating an existing bar association because these objectives are subject to statute or court rule and are not the responsibility of an integrated bar. For example, virtually every state in the country has in place court rules or statutes prescribing caretaker regulations when a lawyer disappears, dies, or is declared incompetent. And the same holds true for client protection funds, which likewise exist in both voluntary and mandatory bar jurisdictions. (The State Bar of Arizona makes much of its own lawyer caretaker conservatorship program although it budgets a mere 0.206% of a $14.5M budget to further buttress the purported necessity of a mandatory bar by virtue of having the program. But as of June 1, 2015 like almost every state in the country, Arizona has no rule requiring an attorney to designate a successor/surrogate/receiver in case of death or disability. A Rules Petition, however, was submitted in January but the matter was continued);

  4. Avoid the conflicts of interest between lawyers and the public. Voluntary state bar associations are autonomous private professional associations that unlike compulsory bar associations serve the interests of their voluntary members. They do not function like public agencies or regulatory bodies that subordinate member interests in favor of what mandatory bar leaders define as ‘the public good.’ And also unlike mandatory bar associations, the financial self-interest of voluntary associations is tied to a value proposition. Lawyers will refuse to maintain consensual membership in an association where the financial cost exceeds the value received;

  5. Without the Keller restrictions imposed on mandatory membership bar associations, voluntary state bar associations amplify the legal profession’s legislative voice in the lawmaking advocacy process. See, for example, Minnesota State Bar Government Relations and the Illinois State Bar Legislative Affairs Department;

  6. Jen, kissing the First Amendment goodbye? | by jasoneppinkProtect lawyer First Amendment rights without infringing on free speech and an individual’s freedom not to associate, which in the case of mandatory bar jurisdictions, results in the individual being compelled as a condition of earning a living in their profession, to contribute to an association which uses those fees to conduct activities to which that individual objects;

  7. Avoid recurring litigation over the use of compulsory dues for ideological activities; Most recently, see Fleck v. McDonald;

  8. Offer programs and services that favorably compare and even exceed those offered by mandatory state bar associations, including law office management practice services; insurance programs; reduced-cost and free CLE; Find-a-Lawyer member directories; Access to Justice initiatives; job hunting resources; Sections and Committees; lawyer referral services; Publications; Young Lawyer Divisions; Legal Research like Fastcase and Casemaker; Mentoring programs; leadership development programs; Annual Meetings; high school mock trial programs; community pro bono; ethics opinions and practice resources and even online practice tools. (Instead of making a good faith effort to ascertain the scope, content and quality of programs, services, and activities conducted by voluntary bars, mandatory bar proponents prefer to hide behind patent nonsense to justify compelled association);

  9. Are no different from mandatory bar associations in offering lawyer assistance resources to assist lawyers with problems with alcoholism, drug abuse and mental or emotional disorders. See, for instance, the New York State Bar Association’s Lawyer and Judges Assistance Program;

  10. Do not increase costs to the public since lawyers pay 100% of the costs of lawyer regulation in every U.S. state and territory. It is completely fallacious for mandatory bar proponents to spuriously claim that a mandatory bar has to be preserved because their programs and services could not be duplicated by a voluntary bar or that the elimination of a mandatory bar would place burdens on taxpayers. 

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Photo Credits: Samoan man in Hawaii, by Steve Bozak at Flickr Creative Commons Attribution; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution; Scandalized by David Goehring Flickr Creative Commons Attribution.

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https://brandtao.files.wordpress.com/2007/08/groupthink.gif?w=411&h=231

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.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/6/66/Groupthink_Model.jpg/320px-Groupthink_Model.jpg

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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