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Posts Tagged ‘Nevada Board of Governors’

Last month, an Arizona psychic was at a restaurant having lunch when a car crashed through the window, threw him up in the air, and pinned him against a wall. “I didn’t foresee it happening,” joked injured psychic Blair Robertson after the accident. See “Arizona psychic injured when he ‘didn’t foresee’ car crash.”

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.” 

Do-gooders.

https://lawmrh.files.wordpress.com/2017/06/travel-tourism-18.jpg?w=1000&h=The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

https://lawmrh.files.wordpress.com/2017/06/people-16688.jpg?w=163&h=155At Revenge of the Do-Gooderin The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”  

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of lawThis paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

No jurisdiction has yet adopted the ABA 8.4 (g) model rule concoction passed last fall. Nevada hopes to be first.

Meanwhile, the amendment hits Boerman’s do-gooder regulatory, monetary and public brow-beating trifecta. Violations mean notoriety. Regulatory sanctions impact a lawyer’s ability to earn a living.

Academics like UCLA Law Professor Eugene Volokh and South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. See Opinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life” nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice of law.” Lawyers are required to attend such classes to maintain their law licenses. It is not difficult to imagine how certain topics could reasonably be found by attendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success.
● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic.
● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity.
● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachments upon new terrains of unconstitutional discipline.

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The Nevada Supreme Court invites written comment from the bench, bar, and public regarding the proposed amendments. The Hearing date is July 17, 2017, at 2:30 p.m., Supreme Court Courtroom, 408 East Clark Avenue, Las Vegas, Nevada 89101. The Comment deadline is July 5, 2017, at 5:00 p.m., Supreme Court Clerk’s Office, 201 South Carson Street, Carson City, Nevada 89701.


Photo Credits: “Psychic,” by The She-Creature at Flickr Attribution;  “Satisfaction,” by Walter Kramer at Flickr Attribution; “aaaaaaaaaahhhhhhhh,” by Marco Boscolo at Flickr Attribution;”Tread Upon Now What?” by John Eisenschenk at Flickr Attribution; “kindness, persuasion, punishment,” by Meagan Fisher at Flickr Attribution.

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Better late than never. But there are possible signs that at least 2 mandatory state bars, are belatedly adopting a gentler if not kinder customer service mission. So-called mandatory, integrated or unified bar associations require membership for lawyers to practice law in their jurisdiction.

Maybe it’s just a coincidence but the timing of this development in Nevada and Arizona comes just months after the California Governor next door, slapped down his state’s bar organization for its continued lax disregard of its members and their monies. See That time of year again. . .rendering to Caesar his annual bar dues.

Governor Arnold Schwarzenegger is the second California Governor to take the Cal Bar’s leadership to task on similar grounds. Like Pete Wilson before him, Governor Schwarzenegger sent the bar’s bureaucrats reeling when he vetoed the bar’s fee appropriation request.

Even if Nevada and Arizona’s supposed new direction is just a matter of timing with their Golden State neighbor, it’s a noteworthy development. Unlike California, the bars in Nevada and Arizona are not dependent on their respective legislatures or governors for oversight. But imagine, to start treating their respective lawyers as “customers”! Were I not such a dyed-in-the-wool cynic, I might be tempted believe the utterance, “What a refreshing development.”

Increasing member satisfaction.

In the current issue of the Nevada bar’s public relations mouthpiece, Nevada Lawyer magazine, a report of the bar’s 2009-10 goals begins this way: Last August, the State Bar of Nevada Board of Governors met in Fallon, Nevada for a two-day strategic planning session, designed to help bar leadership identify key short- and long-term goals for our organization, as well as establish concrete methods to reach those goals, which include:  • Increasing member satisfaction and engagement by understanding, differentiating and responding to member needs; [emphasis added]. See Your Board of Governors.

A privilege not a right.

Notwithstanding the right to life, liberty, and the pursuit of happiness, something “granted,” can also be taken away. Unlike, for example, an accused’s 6th Amendment guaranteed right to counsel, lawyers are not so bestowed with a fundamental right to practice their profession. Like driving or wearing spandex, the practice of law is a privilege not a right. And as such, it can be taken away.

Of mandatory bars.

The ABA did a study in 1997 on mandatory bars and their origins. This was reported in its Bar Leader magazine. The first mandatory bar was in 1921 in North Dakota. The original thrust was lawyer regulation. But rather quickly the other more obvious and important reason reared its head, to boost the enrollment of members. If you want people to join an organization, there’s a lot to be said for making membership compulsory!

Or in other words, unlike Field of Dreams, if you build it but they don’t come, make ’em.

Additional details concerning this topic can be found in an interesting 2005 report from Wisconsin, WLJ – Bar experts discuss merits of mandatory, voluntary bars. Quoting from the article: In 2001, Florida lawmakers considered legislation to alter the state constitution to split regulation of lawyers between the legislative and judicial branches of government, eliminating the bar association’s authority as a unified bar. The measure died in committee, however.

“Then in in 2003, in New Hampshire, a retired lawyer/legislator led the charge to pass a law that would require the bar to conduct a referendum of its membership on the issue of its compulsory nature and be bound by that vote. The next year, the high court there, which had unified its bar in 1968, declared that law unconstitutional as it “encroaches upon inherent judicial authority.” The referendum had already taken place, and the state’s lawyers had voted to keep the bar mandatory.”

Time will tell.

Neither Nevada or Arizona currently have express language in their mission statements postulating any explicit customer service mission of serving members. Time will only tell what develops in Nevada with respect to that bar’s new goals, especially “Increasing member satisfaction and engagement by understanding, differentiating and responding to member needs.”

As for Arizona, that bar is supposedly also moving in the same direction. However, Arizona’s first moves toward that vision of a lawyer-friendlier, customer service oriented bar might give some members pause.

The Arizona Bar is proceeding with a new plan to re-engineer its disciplinary process. I’ll be blogging about this in the future. But in the meantime, for members of the Arizona Bar, imagine their ‘delight’ knowing that their bar’s first foray into a new customer-friendlier mission involves improving how they’re disciplined. See REPORT OF THE ATTORNEY DISCIPLINE TASKFORCE NOVEMBER 2009.

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Photo Credits: Arnold Schwarzenegger, by Lon R. Fong at Flickr Creative Commons Attribution.

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