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Posts Tagged ‘regulator and trade association conflict of interest’

https://cdn.morguefile.com/imageData/public/files/h/hotblack/preview/fldr_2008_11_02/file0002062790027.jpgYesterday I got another mass email from the State Bar of Arizona (SBA). “Last Chance to Answer the State Bar of Arizona Member Survey” declared the subject line. “Please take a few minutes NOW to fill out the survey.”  And then to sweeten my interest, “As a token of our appreciation for your prompt response, we’ll enter your name into a raffle to win a $100 Visa gift card.” 

As usual, I ignore the Bar’s survey requests. This was the third mass email about the same topic. After the second email, I asked for a blank copy of the survey questions. After a couple of days, the Bar’s public relations chief emailed a copy. The survey runs 9 pages and 48 questions. By my stopwatch, it won’t “take a few minutes” to answer. Not like it matters. I won’t be taking the survey and humbly suggest no one else should either.

Long ago I worked for a guy whose favorite expression was the blindingly obvious, “Timing is everything.” So right in the middle of a big fight at the Arizona Legislature to reform the State Bar comes a self-serving survey replete with the usual leading questions. Talk about timing.

The questions are meant to lead survey-takers down the Bar’s primrose path. Tell us “how valuable” a member benefit is? “How well does the SBA deliver . . . .”

It’s been a while since I read Elizabeth Barrett Browning but in other words, “How Do I Love Thee?” The State Bar of Arizona wants us to “count the ways.”

And among the 48 questions is the one nearest to the unsated stomach of every bloated bureaucrat, “If the SBA could provide you with one additional resource or service that currently is not offered, what would it be?”

Just in case, there’s a second follow-up that fishes for “a second additional resource or service” to add to your expense line. Missing is the better question, “Does this program make me look fat?”

Buried in the questionnaire is the seemingly innocuous question No. 45, “Do you have a succession plan for continuation of your practice in the event that you are unable to continue in the practice of law due to death, disability, or bar discipline?” On that last point of “bar discipline,” Arizona lawyers may not all be aware of this but the Bar recently made a succession plan a mandatory ethical obligation. So if you answer in the negative and then disclose your identity to enter the raffle, beware you aren’t also entering an unintended second raffle for a bar complaint.

The truth is this survey like all the others isn’t intended to identify or to serve members’ interests. These surveys only serve the Bar’s interests. They are tools to drive the Bar’s mission-creeping agenda and to cover its analysis (CYA).

https://cdn.morguefile.com/imageData/public/files/h/hrustall/12/p/c6de1ef8a0319f6a6dfcd0c22fb8b06d.jpgMoreover, the survey and whatever the results may be — either good or bad — serve as a sword and a shield the Bar employs to hide behind or to flagellate critics, especially those ‘pests’ at the Arizona Legislature.

No matter if the Bar again gets an underwhelming response. It usually does. By overwhelming numbers, members ignore these surveys knowing full well what the agenda is about — $100 Visa gift card or not.

But just the same, count on the Bar to loudly trumpet the fake news: ‘Look at the great job we’re doing! Members love us.’ Such pronouncements will continue to fly in the face of reality. How can you dare to assess the satisfaction of captive members forced to join and forced to finance an ever-expanding bureaucratic empire in order to earn a living as lawyers?

And finally leaving absolutely no doubt its intentions comes the money paragraph: “The survey will help us serve you better. It’s also critical to the long-term success of State Bar of Arizona.”

This from the same organization that as ordered by the state supreme court “exists to serve and protect the public with respect to the provision of legal services and access to justice.”

There again is the State Bar of Arizona’s two-headed conflict of interest. It rears its two heads once more. Serve and protect the public but at the same time serve and protect the interests of lawyers —“help us serve you better.”

Reminds me of Jerry Maguire — minus the humor. ‘Help me, help you.’

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Photos: Via Morguefile.com, no attribution required.

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https://upload.wikimedia.org/wikipedia/commons/thumb/f/f6/UserpageCOI.svg/262px-UserpageCOI.svg.pngThe movement begun in Nebraska in 2013 to deunify the regulatory and trade association functions of mandatory bar associations continues. On January 13, 2017,  Representative Anthony Kern introduced HB 2295 and HB 2300  to improve public protection by eliminating the Arizona Bar’s regulator and trade association conflict of interest. Yesterday, both bills were assigned to House Committees for their respective hearings.

https://i1.wp.com/azleg.gov/alisImages/MemberPhotos/52leg/House/KERN.gif

Rep. Anthony Kern

According to Kern, “The bills resolve the conflict of interest that exists when a quasi-public organization that licenses lawyers and is supposed to regulate their conduct also remains beholden to lawyer interests. Neither the public or lawyers are going to be well served by such a conflict. The two missions – protecting the public and serving lawyers – do not work well together.”

In accord with its prerogatives as a co-equal branch of government and its duty to uphold the Arizona Constitution, HB2295 represents a determination by the Arizona Legislature that the protection of the public is the highest priority. And that in the licensing, regulating, and disciplining of attorneys in the state, the protection of the public is paramount over other interests sought to be promoted. This bill goes to the heart of the conflict outlined by Kern.

Trade Association and Regulator.

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b3/Berckheyde%2C_Jan_-_A_Notary_in_His_Office_-_1672.jpg/378px-Berckheyde%2C_Jan_-_A_Notary_in_His_Office_-_1672.jpgThe State Bar of Arizona tries to be all things to all people — but it can’t. Through the years it has employed various semantical machinations to reframe its trade association functions as enhancements to the legal profession. At the same time, it has also articulated a competing mission to serve the public. Indeed, under an updated rule iteration, it now says its mission is “to serve and protect the public with respect to the provision of legal services and access to justice.”

Semantical gyrations notwithstanding, the regulator/trade association conflict of interest remains intractable and irreconcilable.

In addition to doing away with those conflicted interests, HB2295 also reinforces First Amendment free speech and associational freedoms. Proponents also contend it would help lower the high cost to practice law in the state. HB2295 is similar to last session’s HB2221, which fell 5 votes shy of reaching the governor’s desk for signing.

A Voluntary Bar.

Consistent with the Arizona Legislature’s prerogatives as a co-equal branch of government and its duty to uphold the Arizona Constitution, HB2300 provides that to the extent provided by the state constitution, all lawyer regulatory and public protection functions are transferred exclusively to the Arizona Supreme Court.

The bill also provides that an attorney shall not be required to be a member of any organization to become or remain a licensed attorney in Arizona. By eliminating compulsory bar membership, HB2300 remedially makes the determination by the Legislature that conditioning the practice of law on bar membership violates the rights to free speech and free association guaranteed by the Arizona Constitution.

California Bar Deunification.

https://upload.wikimedia.org/wikipedia/commons/4/4b/Map_of_USA_highlighting_California.pngThe Arizona Legislature is not alone in its quest to reform the way lawyers are regulated. According to a report in the ABA Journal, during its last legislative session, the California Assembly “unanimously approved a bill that would have mandated a nonlawyer majority on the bar’s board of trustees to address the antitrust problem, and created a commission to study splitting the bar into a state agency that regulates lawyers and a separate private, voluntary trade group.”

The California Bill failed to pass after the Bar rallied opposition in the Senate. But the fight is far from over. It resumes this session. And the pressure for reform mounts. For example, because of policy changes to the governance of the California Bar that adversely impacted California Bar Section operations, including the Bar’s focus on its core regulatory functions, the Sections are currently considering separating from the Bar. The environment created in the past year, combined with the very high overhead and ever-increasing assessment the Sections are unilaterally mandated to pay, the environment has become too difficult for them to reasonably survive or thrive.

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Credit: UserpageCOI.svg, public domain, Wikimedia Commons; Berckheyde, Jan – A Notary in His Office – 1672.jpg, public domain, Wikimedia Commons; Map of USA highlighting California.png, Creative Commons Attribution-Share Alike License, Wikimedia Commons.

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