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Posts Tagged ‘Keller v State Bar of California’

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://i0.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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Talk about timing. No sooner did I say something nice about a state bar president when the following month he’s in hot water. Call it the burden of irreverence. I’m referring to Nevada State Bar President Alan J. Lefebvre. He’d been on a tear of late in the Nevada Bar’s normally boring monthly lawyer magazine.

As bar president, Lefebvre gets his own column, the “President’s Message.” And I’d given him an atta-boy for his unprecedented criticisms of the state of legal education and especially, for his remarks about the unauthorized practice of law. More recently, he’d decried the state’s medical marijuana law calling it reefer madness.

Catherine Cortez Masto.jpg

Nevada Attorney General Catherine Cortez Masto

But what was he thinking when he decided to go editorially commando with his latest President’s Message: Dereliction of Duty … Or is it Rule by the Guardians?”

Unhappy with Nevada Attorney General Catherine Cortez Masto’s decision not to defend Article 1 Section 21 of the Nevada Constitution, Lefebvre offered up his ten cents’ worth of opinion and earned himself back $100 dollars worth of grief. Section 21 is known as the “Limitation on recognition of marriage.” It was passed 14 years ago and states, “Only a marriage between a male and female person shall be recognized and given effect in this state.”

Lefebvre’s arguments, however, were mostly legalistic and reminiscent of the 2011 brouhaha when King and Spaulding backed out of defending the federal Defense of Marriage Act.

For the record, I disagree with him on the merits. And until the US Supreme Court steps in, so do the courts. As of last week, with state officials in Oregon and Pennsylvania opting like Cortez Masto not to challenge court decisions overturning bans on gay marriage, there are now 19 states where same-sex couples can be granted legal recognition. See “SameSex Marriage Supporters Keep Up Their Winning Streak.”

Angry businessman yelling into bullhorn 1Speaking his mind.

But no matter the substance — damn him for his “tone” or so we’re supposed to believe from those “powerful, vengeful people among the elite” Lefebvre ‘disrespectfully’ opined about. So much for candor, for speaking your mind — and for hanging yourself with the PC police.

At least Nevada’s soon-to-be-gone bar el presidente belatedly learned albeit at the end of his term why state bar presidents confine their bar magazine epistles to insipid interjections, inoffensive insights and doggerel defenses of the self-satisfied status quo.

Coincidentally, about the same time Lefebvre was stepping on himself in Nevada, his counterpart in Arizona was innocuously blathering about diversity in his own presidential column. Doubtless he was prompted by the loony Arizona Legislature’s attempted passage of SB 1062, a bill that allowed businesses to assert their religious beliefs to deny service to gay and lesbian customers.

But unlike the non-wishy-washy Lefebvre, the Arizona honcho didn’t say anything about the legislation let alone anything overtly or substantively controversial. Instead it was the standard mealy-mouthed bar presidential schtick — the usual cheerleading self-congratulation about how great the state bar is in Arizona.

Boy with his hands on his face uidLeastwise the sycophantically impressed Arizona bar magazine editor gushed and saluted his president for not writing about a controversial topic in a member magazine. Like playing it safe takes courage.

Perhaps the bar prez was mindful of running afoul of Keller v State Bar of California, which is ‘supposed’ to keep mandatory bars from engaging in ideological political activities with member’s compulsory dues.

Objecting over style but really mad about substance.

So back in Nevada, faculty and staff members at Nevada’s Boyd School of Law were via open letter galvanizing against“the tone” of Lefebvre’s commentary. And with their own immoderation, criticized him for his purported ‘incivility’ over Cortez Masto’s unwillingness to defend the state constitution. Imagine that,

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/0/03/Book_of_Snobs_XVIII-page_69.jpgBut I don’t for a second believe their objections were merely about style or lapsed social graces. No — bar presidents aren’t supposed to weigh in on controversial topics — at least not those the legal establishment disagrees with. Moreover, methinks some faculty members were already miffed at Lefebvre for his prior Op-ed criticisms of law schools generally and of “the law student debt scandal.”

And not like he’d singled out Boyd for any opprobrium. Indeed, as I recall, he rolled over and offered not a smidgen’s worth of reproach of the Silver State’s only law school. In fact, he contorted backwards and complimented the law school dean. File this under “no good deed goes unpunished.”

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https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/c/c0/Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg/448px-Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg“RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

“As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

“Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

“We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.”

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Poster2Blogger, Boyd faculty member and letter signatory Professor Nancy Rapoport also posted exceptions to the strident solitary defense Lefebvre garnered from Ed Whelan at National Review Online entitled “Nevada Law Profs (and Others) vs. Rule of Law—Part 1 ….

Besides objecting to Lefebvre’s “tone,” Professor Rapoport also called Whalen out on his ‘disrespect.’ Oxymoronically, she advocated passionate politeness or was it polite passion? The professor even offered to debate Whalen — privately or publicly.

Piling on.

Air Bourne.gifRather incongruously, the Nevada Bar’s Board of Governors was compelled to pile on notwithstanding there already exist boilerplate disclaimers in the magazine that “Appearance of an article, editorial, feature, column, advertisement or photograph in Nevada Lawyer does not constitute an endorsement by Nevada Lawyer or the State Bar of Nevada unless specifically identified as the policy of the State Bar” and that “the views expressed are those of the authors.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/5a/Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPG/320px-Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPGI guess Keller, the faculty letter, and complaints from interest groups forced the Board to back the PC bus tire over their president. Thursday afternoon, they sent the following blast email to their members.

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“State Bar of Nevada
Statement from the Board of Governors

“To all members of the State Bar of Nevada:

 “The views expressed in the President’s Column in the May 2014 issue of the Nevada Lawyer do not represent those of the Board of Governors, its individual members, or the State Bar of Nevada as a whole.

“The State Bar of Nevada and the Board of Governors embrace and welcome viewpoints of every kind and the Board assures all of our members that diversity and tolerance are valued and respected by the State Bar.

“The Board of Governors assures all members of the Bar and the public that the State Bar of Nevada does not support any use of the President’s Column for political statements. The Board has a policy that requires the State Bar President to refrain from using the Nevada Lawyer to advance personal political viewpoints.

“The Board of Governors assures all members that we will be diligent in representing you in an unbiased manner.”

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Oh the ironies.

Most lawyers I know don’t bother reading the presidential pabulum published in bar magazines. So ironically, but for the outsized attention generated by law school faculty and staff, very few would’ve noticed Lefebvre’s commentary.

photoThe even greater irony, however, is that as it is, lawyers don’t have the Free Speech rights everybody else has. Lawyer free speech is limited by ethical rule —  a topic I’ve often posted on, e.g., here and here and here. So it’s sad that when lawyers dare to state their opinions in such public ways, they need to also remember to duck before the first shoe gets thrown.

And finally, these days the term civility gets bandied about a lot. And yet civility is no longer an abstract principle but has come to mean what’s subjectively polite in the eye of the beholder. But unfortunately, the extension of aspirational courtesies and respectful considerations has become increasingly dependent upon who’s the one being gored.

http://www.lamed.blogspot.com/2006_01_01_archive.html

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Photo Credits: “Danger: Hot Water Will Scald!” by Wesley Fryer at Flickr via Creative Commons license requiring attribution; Catherine Cortez Masto, State Attorney General of Nevada, at Wikipedia Commons, public domain; “wise monkeys,” by Thunderchild7 at Flickr via Creative Commons license requiring attribution;Engraving on wood by W. M. Thackeray himself, for the first edition of The Book of Snobs. Chapter XVIII, “Party-giving snobs” Mr Snob and Miss Smith, at Wikimedia Commons, public domain;”Officer writing a letter,” attributed to Gerard ter Borch at Wikimedia Commons, public domain; Air Bourne.gif by Matthew Korklan at Wikimedia Commons, public domain; “tata mini bus rear wheel” by Biswarup Ganguly at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license;”Speak No Evil,” by Theron LaBounty, notanyron, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “this cow has an itch,” by Brent Moore at Flickr via Creative Commons license requiring attribution; bull goring at www.lamed.blogspot.com

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