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Posts Tagged ‘mandatory state bar’

man_in_fireFact-checking the Arizona Bar Mission & Governance Task Force in 2015, I provided a chart to refute the alternative fact in the draft report that “States that have voluntary bar associations by and large do not have lower overall bar dues.”

The Arizona Bar was wrong then. 16 months later having updated the chart — they’re still wrong. Indeed, because compulsory membership dues have gone up for Arizona’s lawyers since 2015, the claim is even more inaccurate.

Coincidentally, for the procrastinatory or penurious, yesterday was the last day Arizona lawyers could pay annual mandatory dues without incurring a $100 late penalty.  And for those still cash-strapped or dilatory after March 2nd, add another punitive $100 to the grief quotient — not to mention the risk of summary suspension for non-payment.

While it’s true fees have gone up in some voluntary states since 2015, even at that lawyers in those 18 voluntary bar states are still better off than lawyers in mandatory bar states like Arizona and the 11 other chart-topping most expensive mandatory bars. Annual dues in those not-cheaper-by-the-dozen jurisdictions run from $430 to $660.

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Arizona lawyers will be thrilled to read the current Arizona Attorney magazine item on how the Bar Board of Governors’ 2015-2019 strategic plan is “committed to maintaining member fees as approved by the Arizona Supreme Court, without additional increases to members, consistent with the Bar’s duty to serve and protect the public.”  Talk about chutzpah. They haven’t even finished rolling out the last dues increase. As it is, Arizona is already the 2nd highest total cost to practice among mandatory bars.

Paying less.

https://cdn.morguefile.com/imageData/public/files/m/mensatic/preview/fldr_2005_02_05/file000777960788.jpgOn average, lawyers in the voluntary states pay less for lawyer regulation. This makes sense since lawyers aren’t forced to pay for both regulation and what should be optional trade association functions.  The average cost of lawyer regulation in the 18 voluntary jurisdictions is just over $200. Not so in Arizona where lawyers pay for compulsory membership, which includes an undisclosed amount for lawyer regulation.

And even where lawyers choose to join their voluntary bar associations, the average is $477 — still lower than the $505 Arizona lawyers currently pay and which goes up to $520 on January 1,2019. Using the comparably sized 22,000+ member voluntary Ohio State Bar Association as an example, Ohio lawyers pay $175 per year in court-mandated lawyer regulatory registration fees ($350 biennually) and $305 to belong to the voluntary Ohio State Bar. The total annualized cost for both is $480. In my opinion, the Ohio State Bar Association’s membership benefits are even better than those offered by the State Bar of Arizona.

The data on the following chart on voluntary state bar association membership dues is updated from 2015. It was obtained from readily available public online information from voluntary state bar jurisdictions and in some instances, by direct communications with voluntary bar lawyers and association representatives. Attorney registration fee information comes from state court websites.

voluntary-bar-jurisdictions-cost-comparison-chart

 

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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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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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Pants on Fire | by Mike Licht, NotionsCapital.com“States that have voluntary bar associations by and large do not have lower overall bar dues,” says a footnote in the Draft Report posted by the Arizona Supreme Court’s State Bar of Arizona Mission and Governance Task Force. “They charge both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona.”

Sounds well and good — but too bad for the Kool-Aid guzzlers, it doesn’t pass a fact check.

Caricatures 14You can read the Draft Report here and find the above-mentioned quote at the bottom of page 13.

Fact-checking the Bar.

After the better part of a year, you’d think the Task Force would have spent a little more time fact-checking and getting its story straight. Or maybe like George Costanza, it just believes it — so it must be true.

Certainly, there’s a lot in the Task Force Report upon which to take exception, not the least being the conflated mythology again fluttered out on frayed wings that only a mandatory bar can “ensure professionalism and competence” and that only a mandatory bar can protect the public from its lawyers.

Night Shift 31This, of course, ignores the robust lawyer regulation and disciplinary regimes in 18 voluntary state bar jurisdictions. It also wrongs and misconstrues the panoply of membership benefits provided by voluntary bar associations, to name a few, like Ohio’s, Iowa’s, Colorado’s, New York’s, and Illinois.’

Indeed, many if not all the voluntary bar association programs and benefits rival and even exceed the programs, activities and services offered by the compulsory State Bar of Arizona.

And yet, the Arizona Bar likes to pretend that only mandatory bars make available client protection funds; offer law office management and lawyer assistance programs; provide continuing legal education courses; present annual bar conventions; publish monthly bar magazines or support ethics hotlines. Begging the question, the Draft Report shamelessly proclaims,These invaluable services will cease to exist with the demise of the integrated bar because no voluntary bar in Arizona offers them.”

Instead, see what happens in jurisdictions with voluntary bar associations, for example, check out: Ohio and Iowa and New York and Colorado and Illinois. Lawyers in those jurisdictions choosing to join their state’s voluntary bar associations don’t take a back seat to anything offered by the mandatory State Bar of Arizona.

Twain's Men's Room | by bump

 

morguefile.com photo

It takes two hands to put out this whopper.

As for the whopper about how both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona,” the facts are set out in the chart below.

The data concerning optional voluntary state bar association membership dues was obtained from readily available public online information from voluntary state bar jurisdictions. The attorney registration fee information comes from state court websites although since the Arkansas Supreme Court fee registration information was not publicly accessible, it was confirmed by a licensed Arkansas lawyer.

 

 

fees-sba-web

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The fees in the chart are the full fee maximums for lawyers practicing past the entry-level graduated fee periods. Newbie lawyer fees are typically discounted.

No MCLE in Connecticut, Maryland and Massachusetts.

And then take note of something else not mentioned in the chart. While the breathtaking $945.00 combined regulatory assessment and separate voluntary bar dues appear to make Connecticut a high cost to practice jurisdiction, the overall cost to practice is still lower than in Arizona. Why? Because unlike Arizona, Connecticut does not have mandatory continuing legal education (MCLE). This saves Connecticut lawyers anywhere from $600 to $1000 per year versus what Arizona lawyers pay to satisfy the annual 15 hour MCLE requirement.

The same is true of Massachusetts with its sizeable $761.00 combined regulatory assessment and separate voluntary bar dues. Massachusetts does not have a MCLE requirement. Nor does Maryland, which at $280.00 for both regulatory assessment and voluntary bar dues must be the lowest cost to practice jurisdiction in the United States.

Comparing overall costs to practice.

Work World 14The bottom line is two-fold: One, in voluntary bar states, lawyers can elect to pay only their court-mandated regulatory registration fees and forego joining a voluntary state bar association. This automatically reduces their overall cost to practice as compared to Arizona.

Two, the exact opposite is true of the Task Force’s claim that Arizona’s bar dues are often exceeded by the combined regulatory assessments and voluntary bar dues in voluntary bar jurisdictions. Lawyers in states that have voluntary bar associations pay lower overall bar dues, in some instances much less than the current and still escalating annual membership fee in the State Bar of Arizona, which hits $520 per year on January 1, 2018.

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Photo Credits: “Pants of Fire,” by Mike Licht at Flickr Creative Commons Attribution ; Twain’s Men’s Room, by Robert Occhialini at Flickr Creative Commons, Attribution-NonCommercial 2.0 Generic License.

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A colleague and I recently revisited the need for state bars, especially Arizona’s, to recast their stated mission. Any reader of this blog knows I’m as polemical as the next person.

Backgrounds & Concepts 34And yet, a part of me questions how fruitful such a discussion is since the Bar here, like in most jurisdictions, does not necessarily march to its own tune. The state supreme court jealously guards the music sheet and locks up the band instruments.

The Arizona State Bar has long seen itself as first and last, as a kind of consumer protection agency. It’s mission statement says as much, “The State Bar of Arizona serves the public and enhances the legal profession by promoting the competency, ethics and professionalism of its members and enhancing the administration of justice.”

Only indirectly, by promoting competence [through mandatory continuing legal education]; ethics [through lawyer discipline]; and professionalism [through both continuing legal education and lawyer discipline] does the bar see the fulfillment of its other mission of enhancing the legal profession, and ostensibly serving lawyers.

Opposing perceptions.

Ironically, the general public considers state Bars, regardless of jurisdiction, to be little more than ‘lawyer protection agencies.’ Even so, lawyers frequently seen themselves as besieged and beset upon.

In her article, Bar Associations, SelfRegulation and Consumer Protection: Whither Thou Goest?, Judith L. Maute cites Deborah L. Rhode, Ernest W. McFarland Professor of Law, and Founding Director, Stanford University’s Center on Ethics, and Rhode’s discussion on how differently lawyers and the public perceive lawyer discipline.

In The Profession and the Public Interest, 54 Stan. L. Rev. 1501, 1512 (2002), Rhode stated that the public perceives lawyer discipline as “[t]oo slow, too secret, too soft, and too regulated.” Lawyers surveyed, on the other hand, regard the process “as too severe and too responsive to frivolous complaints.” 

Family Photos 35Talk about perceptions being in the eye of the beholder. It’s a thankless chasm not worth trying to cross. But should Bars do so?

In many ways, the dilemma is irreconcilable. When last I spoke with a Bar executive, we agreed-to-disagree on a possible solution set.

I suggested the Bar should continue pursuing its consumer protection function but with the following conditions. First, the Bar should separate itself completely from any semblance of a service mission to lawyers. Second, with a reduced scope of work, it could cut significantly its overhead consistent with that reduced function. And third, the Bar should stop mandating lawyer membership.

To fulfill the disciplinary function of the legal profession, the state supreme court would completely take over the entire process from intake to disposition. Lawyers would no longer pay bar dues but instead pay a separate fee for the cost of disciplinary administration. That fee, along with the imposition of fines, would make lawyer discipline self-funding.

File:Hortus Deliciarum - Hell.jpg

No chance in Hell.

The suggestions are hardly innovative or proprietary. Nor do they have a chance in Hell of ever being adopted here.

But increasingly, lawyer discipline is already being managed almost exclusively by a state’s judiciary who acts as the last arbiter. State Bars do little more than act as recommending bodies.

As consumer protection agencies, the Bars could continue donning ‘the white hats’ for a likely less skeptical public. No longer forced to join in order to practice, lawyers would stop being ambivalent about the Bar’s current duality. This is a model already working in a few other jurisdictions.

File:Creation-of-adam.PNGThe Bars would continue making disciplinary referrals to the courts for follow-up inquiry and final judgment. The Courts would continue doing what they’ve always done, much as Thomas Kempis once declared, “Man proposes but God disposes.”

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