Posts Tagged ‘lawyer regulation reform’

A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “some lawyers argue there should be an exception” to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹

As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to Bar membership.

It’s not clear who would determine the adequacy of the affidavits or how often affiants would have to file their objections. California teachers, for example, must annually file an opt-out request to get a 30% refund of their union dues.

More significantly, objectors would be forced to tell their clients of their new status as NMAs. This assuredly implicates unconstitutional compelled speech. It also serves no legitimate government function. And without pinpointing any legitimate purpose, objectors would be issued new Bar cards with brand new bar numbers to identify them as attorneys licensed to practice — but NMAs. Talk about chilling the First Amendment right not to associate.

A lawyer second class.

As a newly created separate and unequal class of lawyers, NMAs would be excluded from voting in Bar elections or from running for its governing board. However, as others have pointed out, disenfranchising NMAs is only appropriate if the State Bar has no formal role in attorney discipline and governance. But that’s not the case here. The Court-empowered Bar will continue holding regulatory and disciplinary sway over both members and non members.

Categorized as ineligible for Bar discretionary services, including specialty section membership, NMAs would also be charged higher registration fees for Bar continuing legal education programs.

In exchange for giving up the foregoing, it’s estimated NMAs would save a modest $70 to $100 off the current $505 dues. Already one of the highest cost to practice bars in the U.S., Arizona’s dues go up to $520 a year from now.

It’s fair to wonder how this low savings estimate was calculated and whether it was derived from self-interested Bar number-crunchers. By contrast, when in 2013 the Nebraska Supreme Court ordered the Nebraska Bar to charge members only for lawyer regulation — licensing fees went down by two-thirds.

The lawyer as conscientious objector.

Forget for the moment that “an opt-out system places the burden on the wrong party and leads to the unjust and needless encroachment upon First Amendment rights.” Or that giving lawyers only one choice: making a Hacksaw Ridge style conscientious objection to get out of membership is not only absurd but unnecessary. Trade association services should be voluntary to begin with. And when did we sign up for the infantry?

As I have written here before, the Bar always conflates lawyer professionalism, expertise and qualifications with mandatory membership — because it serves their self-interest. Lawyers are admitted and authorized to practice by the state supreme court not because of Bar membership.

Yes or no.

After describing how the proposal would be implemented, the survey asks a yes or no question, “Given this information, do you believe the Arizona Supreme Court should provide a non-member attorney option to attorneys licensed to practice in Arizona?”

And then asks, “If the AZ Supreme Court were to provide a non-member attorney option as described above, would you:

___ Remain a full member of the State Bar

___ Choose to opt out”

Below are the parameters that frame these survey questions. But inasmuch as they amount to poison pills, it’s clear the intent is to not to delineate but to dissuade respondents from opting out.

The State Bar, which gave input on the survey, stands to profit should the results inure to its benefit. However, asking the Bar for input on whether its captive members should opt out is like asking the cat whether to release the mouse.

So notwithstanding the survey’s one-sided argument and suspect constitutionality, the Bar will just the same crow a result that cowed its members from opting out. How many lawyers will find amenable a requirement to out themselves to clients like modern-day Hester Prynnes?

But if there’s ever been a better case for a voluntary bar than the one presented by this unworkable scheme — I can’t think of one.


Lawyers who choose the NMA option:

“Would be required to file an affidavit with the State Bar indicating they favor a firm, fixed and sincere ethical, religious or moral objection to being required to be a member of the State Bar.

▪ “Would be required to notify your clients that you are no longer a member of the State Bar, but are licensed to practice in Arizona.

▪”Would have to personally file the affidavit. The head of a firm or office could not opt out for all attorneys at the firm or office.

▪ “Would receive a separate law license number and their current bar number would be deactivated.

▪ “Would not be able to join a State Bar section.

▪ “Would be charged a higher non-member registration fee if the NMA wants to attend a State Bar sponsored CLE program.

▪ “Could not vote in State Bar elections, nor could they run for the Board of Governors.

▪ “Would not be eligible for State Bar discretionary services, e.g., the Arizona Attorney, e-Legal newsletters, Law Office Management assistance, use of FastCase, State Bar legal publications.

▪ “Would pay a mandatory licensing fee but would not pay for State Bar non-regulatory services. The Court estimates it would be a 14% to 20% reduction in the fee paid for only being licensed to practice. For a regular active Bar membership, the reduction would be $70 to $100.”


¹Never having heard of any lawyer making such a peculiar argument, what first occurred to me on seeing the proposed NMA acronym was the Compton rap group N.W.A.


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History was made today in California. Governor Jerry Brown signed Senate Bill 36, unprecedented legislation that required painstaking effort the past two years to realize. Bar reform failed in 2016 but this time was different. The legislation sailed through both legislative chambers.

SB 36 increases the California State Bar’s focus on its core regulatory functions — public protection, admissions, licensing and lawyer discipline. It accomplishes this by requiring the California Bar to transfer its 16 specialty sections (with more than 60,000 members) and the California Young Lawyers Association (with its 48,000 members) to create what becomes the nation’s second largest voluntary association of lawyers after the American Bar Association.

The functions and activities of the existing Sections will become a part of a new private, non-profit corporate entity, defined as the Association. The Association will be governed by a board of directors selected by the individual sections themselves. It is not part of the State Bar. Moreover, the Association is prohibited from being funded by membership fees and is not considered a state, local, or other public body for any purpose.

Membership in the new organization is strictly voluntary. It will receive no funding from the State Bar’s mandatory membership fees – though members will have the convenience of continuing their Section membership as the Section dues check-off will remain on the State Bar dues statements.

Focus on public protection

Under the new law, the implementation process begins January 1, 2018. The current 19-member State Bar governing board will transition to a 13-member board with a maximum of 6 non-lawyer public board members. Unlike the current State Bar Act that required the board to elect or select the president and vice president, the new law requires the California Supreme Court to appoint a chair and vice chair. The State Bar is also required to adhere to a Supreme Court-approved policy to identify and address any proposed board decisions that trigger antitrust concerns. Read the entire bill text here.

Two-headed Bar

Meanwhile back in the Arizona desert, similar legislative efforts to carve out the regulatory from the non-regulatory functions of the Arizona Bar continue road-blocked. Arizona Bar bureaucrats and entrenched establishment interests have strenuously fought any proposed bar reform legislation. More recently, the Bar opposed a rule petition that would have split the functions of the Arizona Bar into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”).

In Arizona — and what will soon no longer be the case in California — the Arizona Bar has two heads. It acts as both regulator protecting the public from unethical lawyers — while at the same time acting as the trade association looking out for the interests of lawyers. This creates a conflict of interest. The interests of the public and the interests of lawyers are not the same.

In California, the Sections had for decades been a part of the regulatory umbrella of the State Bar. During that time the Sections worked on behalf of lawyer interests providing them trade association-like benefits and services.

But unlike Arizona and other reform-resistant jurisdictions like Washington and Wisconsin, the separation of regulatory from non-regulatory functions was finally accomplished only through collective effort. The bill signed by California’s governor today came about through collaboration by the legislature, the State Bar, the Supreme Court’s Chief Justice, the Sections and other stakeholders working together to make history.

Only time will tell whether California’s hard-fought success now helps to put two-headed bars in other states not just on notice —  but on the block.

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