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Posts Tagged ‘State Bar of Arizona’

Like the bed-destroying dog that expects praise or the guy that lights the house on fire and later claims credit for putting it out, yesterday the State Bar of Arizona blast emailed supposed “good news about member fees.” The Bar’s final $15 dues increase slated for implementation January 1, 2019 “has been put on hold.”

Already one of the highest cost to practice states in the U.S. at either No. 3 or 4 on the high-priced hit parade, the Bar’s email message from its new president seemed to expect members to praise or credit it for this latest dues suspension.

Let’s instead give the new president a dozen chutzpah cupcakes to pass around at next month’s board meeting.

This is the second postponement authorized by the state supreme court. The last $15 was originally scheduled for roll out January 1 of this year.

But to be clear, the increase hasn’t been terminated. It’s only “on hold” — again.

That nuance, however, needn’t get in the way of the Bar audaciously reframing the latest postponement. It’s the result of the Bar having “done a great job managing its budget and resources,” says the new president.

In actuality, it’s business as usual at the Bar. Every year the budget swells thanks to unbridled bureaucratic growth; generous executive pay raises; mission creep; new hires; and the new Public Service Center’s consumer-lawyer internet matching service. Talk about spin.

By way of history, in December 2013 the Bar first proposed a $100 total dues increase, $25 per year phased in over four years. The board tried to slip through this hefty, unwarranted dues hike 12 days before Christmas when they likely believed members weren’t paying attention.

But members did catch wind of the Bar’s unwelcome early yuletide gift. Following member uproar, the board backed off a vote on the proposal and rescheduled it for February 2014. The board also scaled back the $100 increase in favor of a $60 increase, $15 per year over four years. The board’s amended proposal, however, also tried to shamelessly embed an automatic CPI escalator. Leave it to lawyers to step on the tail of due process. Fortunately, the cost-of-living escalator was denied by the court although the $60 increase alas won approval.

Then as now, the Bar claimed to be cutting expenses and operating with efficiency. The president at the time even declared the Bar had “streamlined to the point that we spend less today per member than we did in 2005 when the last dues increase occurred.”

These days, at least per its latest Form 990 IRS-mandated public return, the Bar remains as bloated as ever. There are 133 employees¹ on the payroll not including an undisclosed number of independent contractors and consultants.

And while it brags about “the great resources the Bar offers its members,” in point of fact most members don’t care, want or bother with these self-styled “great resources.”

Indeed, what the Bar fears most is a time when it is finally forced to give their compulsory members a choice whether or not to voluntarily fund these “great resources.” When that happens, no amount of spin or cherry-picking chutzpah will repurpose that reality.

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¹After this post was published, I received an email from the Arizona Bar’s Chief Communications Officer with the following: “Just for the record, the State Bar currently has 102 employees. The 133 number on the form 990 basically refers to anyone who received a W2. Because of employee turnover the numbers will always be greater than the number of employees.”

Credits: “O Mingus,” by Jenn at Flickr Creative Commons Attribution-NonCommercial-ShareAlike; “Dog Cupcakes,” by Jenny Kaczorowski at Flickr Creative Commons Attribution-NonCommercial-ShareAlike.

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In deciding Janus v. AFSCME for Mark Janus today, the U.S. Supreme Court by a vote of 5 to 4 overturned Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). The ruling was widely expected.

In overruling Abood, the nation’s high court said that Illinois’ extraction of agency fees from nonconsenting public-sector employees like Mark Janus violated the First Amendment. In other words, the Court said that the First Amendment protects public employees from being required to support a private group whose views may differ from theirs. Abood, the Court said, “has proved unworkable.”

For lawyers forced to join and to fund a state’s mandatory bar association this is wonderful news. Abood was the linchpin case upon which mandatory membership bars comprehensively ordered their activities. Today’s Janus ruling breaks one leg off the stool mandatory bars plop down on to straddle lawyer First Amendment rights.

Abood and Keller.

In Abood, the Court ruled unanimously that union shop clauses in public sector collective bargaining agreements could not be used to compel nonunion employees to fund the union’s political or ideological activities to which they objected. The Court, however, also held that nonunion public sector employees could be required to fund union activities related to “collective bargaining, contract administration, and grievance adjustment purposes.”

Abood was subsequently used to underpin Keller v. State Bar of California, the U.S. Supreme Court case that said mandatory membership bar associations could use compulsory members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Nonetheless, ever since Keller was decided, lawyers have objected to the inherent conflict of interest that exists when mandatory bars — in line with the ruling in Abood — are the sole arbiters deciding which of their activities are “germane” to the permissible purposes of lawyer regulation or improving the quality of legal services (chargeable expenditures) and which activities are political or ideological and therefore not germane (non-chargeable expenditures).

In highlighting Abood‘s infirmities, the Court declared “its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision.”

But since member non-transparency is their stock in trade, mandatory bars have historically never bothered with such ‘trifles’ — ignoring altogether the line between chargeable and nonchargeable expenses. ‘Germaneness’ analysis? What’s that?

This is why a good case can be made for the inability and the unwillingness of mandatory bars to determine what are chargeable or nonchargeable expenditures. Lawyers, like public sector employees, have similarly faced what the Court termed “a daunting and expensive task if they wish to challenge union chargeability determinations.”

No more opt-out — affirmative consent required.

Prior case-law required notices with “sufficient information to gauge the propriety of the union’s fee.” The reality, however, has been different. The unions, including AFSCME, have failed to provide sufficient information to permit such a determination. Indeed, the Court Opinion included “some examples regarding the Union respondent’s expenditures.” The Court listed “categories of expenses’ and the amount in each category “said to be attributable to chargeable and nonchargeable expenses.”

“How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.” at 41.

Interestingly, these vague, imprecise expenditure declarations frankly bear a strong resemblance to the unhelpful high-level expenditure disclosures provided by mandatory bars such as Nevada and Arizona.

Forget for now the fox assigning herself to count the chickens in the hen-house. Mandatory bars do like hanging their capes on what they say is their members’ ability to object and to request a refund– albeit after-the-fact — of any expenditures objectors believe are political or ideological. If the objection is successful, objecting members can expect at best a nickel ninety-eight refund for their trouble.

And in even in those jurisdictions where lawyers can opt out of a bar’s self-serving penny-ante lobbying expenditure calculation, it still requires lawyers to affirmatively check a box on the dues invoice to get the measly deduction.

Happily for mandatory bar members everywhere, the Court today, also ruled that taking money from nonconsenting employees for a public-sector union is a First Amendment violation. Employees must choose, the Court said, to support the union before anything is taken from them. “Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

And while lawyers and their trade associations are not exactly identical to public employees and their unions, there’s nonetheless a long line of cases, including Keller, that have consistently analogized bar associations to union shops. For this reason, mandatory bars were apprehensive about the demise of Abood. Little wonder that 21 former Presidents of the District of Columbia Bar signed an amicus brief asking the Court to leave Abood “undisturbed.”

The ex-bar presidents claimed, “The Abood/Keller line of cases represents a firmly rooted body of law upon which not only states and unions but also integrated bars, File:Aimee Semple McPherson-AngelusTemple Sermon 1923 01.jpgincluding the D.C. Bar, have long relied in structuring their activities. Overruling Abood would have a profoundly destabilizing impact on bars all over the country.”

So expect reverberations at the nation’s mandatory bar associations — whether engendered voluntarily or mandated by external forces.

All that aside, I can scarcely wait for the reaction of mandatory bars across the nation to Janus, especially in jurisdictions with particularly restive members such as Arizona, Nevada, Washington and Wisconsin.

But expect mandatory bar leaders not to go along quietly or quickly to restructure operations in accord with today’s decision.

Instead, they will pretend it’s business as usual. Abood or not, still others may piously prattle and parse that “Keller-purity” means “Janus-purity,” too.

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Credits: Thumbs up for PYPS, by Alex Luyckx at Flickr Creative Commons Attribution; Paul gives the thumbs up, by Mikey at Flickr Creative Commons Attribution; normal, happy, sad, by David Pacey, Flickr Creative Commons Attribution; Aimee Semple McPherson. Wikimedia Commons, public domain.

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https://cdn.morguefile.com/imageData/public/files/b/BonnieHenderson/01/l/1451713664si0nf.jpgThis week signals the official start of summer, which also means — it’s state bar convention time! The annual silly season has begun.

In addition to being the last continuing legal education money grab for state bars before the fiscal year ends, it’s also the annual “orgy of self-adulation”like the Oscars for bar insiders and connected elites.

Lawyers you never heard of — chosen by who-knows-who — will get awards only recipients will care about.

And oh, yeah incoming bar leaders will fatuously speechify after being pompously sworn in.

The Texas, South Dakota and Wisconsin Bar Annual Conventions started this week. Next week Arizona holds its 2018 State Bar of Arizona Annual Convention.

Termed its “flagship event,” Arizona conventioneers can anticipate at least a partial antidote to the rest of the Butt-Numb-A-Thon with a Thursday Party and the State Bar’s “Lawyers Got Talent” Contest.” And the jokes almost write themselves — a lawyer amateur talent show.

Anyhow, if there’s a dance competition, I hope these guys show up. They’re among Arizona’s cheekiest, ineradicable personal injury advertisers. Ka-ching! — they even bought a full-page color ad in the convention brochure. And with dance steps like these, how can they miss?

The Naked Truth.

In truth, the silliness started months ago. In March, the Utah State Bar inadvertently emailed a photo of a topless woman to every lawyer in the state to herald its upcoming Spring Bar Convention.

ABA Journal recounted, “The message, sent to all active Utah lawyers, was intended to promote the bar’s spring convention, reported the Salt Lake Tribune, the Deseret News and Above the Law, which posted the email and the nude photo (not safe for work) here. The email also included photos of a clothed Lady Justice statue and a rock formation.”

Embarrassed bar officials tweeted “Apologies to all who received an inappropriate email from the Utah State Bar. We are aware of the situation and are investigating the matter.”

And underscoring how you can’t make this stuff up, the Utah Spring Bar Convention kickoff reception also featured, “the 16th Annual “Secret Lives of Lawyers” Silent Auction.” See “Utah State Bar sends every local lawyer an email of a topless woman.”

Parenthetically, the Utah Bar holds not just one yearly convention — but two. The Summer Convention is July 25-28 in St. George — undoubtedly with new safeguards to prevent another bare-chested recurrence.

‘How do I love me . . . let me count the ways.’

Generally speaking, bar conventions are not well attended. Well under 10% of the bar’s lawyers, for example, annually attend in Arizona and even fewer in Nevada. This is unlikely to improve, especially for Nevada, which continues to price itself out of reach of many members by holding conventions in expensive venues.

Last year’s convention was in Austin and the year before it was Hawaii. This year’s paean to self-congratulation is next month at Chicago’s iconic Drake Hotel. Registration for the Nevada Bar Convention comes in at a hefty $590 per registrant — likely the most expensive registration of any bar annual meeting this year.

Those paying the hefty fee on top of airfare and hotel expenses can at least look to their inclusion at the President’s Dinner. According to the convention brochure, “This semi-formal (black tie optional) event celebrates the recipients of the 2018 State Bar of Nevada’s Membership Awards and incoming bar President Rick Pocker, who will become the state bar’s 90th president. In addition to a plated meal, guests will be able to enjoy entertainment and dancing, as well as a red-carpet style photographed entrance.”

Not to be outdone, though, the Arizona Bar will similarly fete its incoming president and dole out member awards only the recipients care about. And why not? Patting yourself on the back is part and parcel of these annual meetings.

With a hat tip to my buddy, The Legal Watchdog, Wisconsin’s 2018 Annual Meeting & Conference starts June 21st and apparently still scrounging for attendees, bar cheeseheads mistakenly curtailed the registration deadline before extending it to the penultimate day.

And in a rather ironic programming twist, one of the plenary speakers is P.J. O’Rourke, “author, humorist, and political satirist.” I hope he includes some of his most quotable observations about hubris — “one of the great renewable resources” as well as his pointed observations on bureaucracy, greed, and power — in other words all the traits of a compulsory membership bar association.

I suspect, however, there may be limits to the silliness in Lake Geneva, WI. O’Rourke will probably leave out his lawyer jokes such as this chestnut: “During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million dairy cows. How come the government never does anything like this with lawyers?”

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Credits: silly, bonnie henderson at morguefile.com; Thank You Gif via Tenor; Blog OMG! by Mike Licht at Flickr Creative Commons attribution; Shocking!!! “that guy isn’t wearing pants,” by Chuck Olson, Flickr Creative Commons attribution license.

 

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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.

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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.”

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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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https://upload.wikimedia.org/wikipedia/commons/thumb/1/17/Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpg/339px-Flickr_-_USCapitol_-_Squirrel_in_front_of_the_U.S._Supreme_Court.jpgFree speech and free association relief for lawyers may be on the way. The nation’s highest court agreed this week to hear Janus v American Federation of State, County and Municipal Employees (AFSCME), a case that revisits the issue raised last year by Friedrichs v. California Teachers Associattion, “Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.”

Friedrichs unfortunately was left undecided. On the untimely death of Justice Antonin Scalia, the court split 4-4 and the lower court ruling was undisturbed.

Had the U.S. Supreme Court ruled for public school teacher Rebecca Friedrichs, her First Amendment rights would have been vindicated — and potentially so too the rights of the nation’s lawyers.

Indeed, in the words of 21 former Presidents of the District of Columbia Bar, it “would have a profoundly destabilizing impact on bars all over the country.”  Why? Because overturning Abood v. Detroit Board of Education, 431 U.S. 209 (1977) would also have meant cutting loose the funding gravy train for mandatory bar bureaucrats. See “SCOTUS Ruling Leaves Keller Alone—for Now.”

Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Under Keller, lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use 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 not all members agree with.

Janus v. AFSCME

The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Mark Janus is a public sector employee who on First Amendment grounds objected to paying money for union collective bargaining and contract administration activities he did not support. The Seventh Circuit held that Janus’ claims were barred solely because of Abood. See “Supreme Court poised to deal a sharp blow to unions for teachers and public employees.”

Writing at The Supreme Court’s Next Big Union Fight: Six Key Questions,” lawyer journalist Marcia Coyle opined about the impact on bar associations, “And although they are not private sector unions, a decision against the union agency shop fees could also affect mandatory dues arrangements of state bars . . . integrated bars have long relied in structuring their activities on Abood and Keller v. State Bar of California.” Justice Neil M. Gorsuch is expected to provide the fifth vote to overrule Abood and end the collection of agency fees by public employee unions.

Go along to get along

https://upload.wikimedia.org/wikipedia/commons/7/74/Agnes_Karikaturen_Vorwaerts.jpgTo earn a living in their chosen profession, lawyers are forced to go along to get along with an untold number of Constitutional impingements. Lawyers, for example, are subjected to freedom of speech and freedom of association restrictions not ordinarily applied to others. For example, notwithstanding that judges are government officials subject to the “uninhibited, robust and wide-open” core political speech constitutional standards under New York Times Co. v Sullivan, lawyers are nevertheless punished for remarks deemed disparaging about the judiciary.

Moreover, in violation of the First Amendment right of free association, law firms are prohibited from obtaining outside investments. And rather than ask lawyers to opt in to political spending, mandatory bars require members to actively object to the cavalier presumption that lawyers condone the use of their mandatory monies to fund political speech they disagree with. And in perhaps the greatest pirouette of the First Amendment, in 32 states lawyers are forced to join a bar association to practice law.

Sui generis?

https://upload.wikimedia.org/wikipedia/commons/2/28/Lula-WIKI.pngIt’s common to require members of professions and occupations to pay an annual fee used to regulate and enforce a licensing system. But it’s quite something else to disingenuously assert lawyers are a breed apart — sui generis special snowflakes that while professing to be aspirational guardians of the law protecting individual rights are nevertheless supposed to tolerate infringements of their own rights.

In truth, the only thing unique about lawyers is how unlike other professions and occupations, lawyers countenance compulsory organizational membership and the imposition of fees for non-regulatory purposes merely for the ‘privilege’ of earning a living.

Fortunately, not all lawyers put up with these constitutional infringements with timid or stoic forebearance. In Wisconsin, for example, lawyers have fought for almost 40 years against the requirement that dues-paying membership in a state bar organization preconditions licensure. As a matter of fact, those arguments even predate the Second World War.

In 2013, lawyers brought about changes in Nebraska when the state supreme court continued its bar as a mandatory but ordered that mandatory dues could only be used for regulatory purposes. As for non-regulatory activities, only voluntary funds could be used. This approach subsequently inspired legislation in Arizona and it tracks with legislation just passed overwhelmingly in California.

https://upload.wikimedia.org/wikipedia/en/thumb/f/fb/Blacksmith_icon_symbol_-_hammer_and_anvil.jpg/252px-Blacksmith_icon_symbol_-_hammer_and_anvil.jpgCalifornia’s Bar is an outlier in finally opting to stop fighting reforms. More typical are mandatory bars like Arizona’s and Wisconsin’s that fight lawyer emancipation from forced membership and forced funding of their attorney trade associations with hammer and tongs.

Last month, without a word of explanation, the Arizona Supreme Court denied a rule petition opposed by Arizona’s bar that would have separated funding of the bar’s regulatory and non-regulatory functions. And just last week, Wisconsin’s 52-member bar governing board unsurprisingly voted to oppose a petition pending before the Wisconsin Supreme Court that would similarly break up member funding based on mandatory dues to support the bar’s specified regulatory activities and voluntary dues to support all other non-regulatory activities.

Who ever said this was going to be easy? But with Abood overturned — it just might.

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Credits: Squirrel in front of the US Supreme Court, by US Capitol at Wikimedia Commons, public domain; Agnes Karikaturen Vorwaerts, by Agnes Avagyan , Narrabilis at Wikimedia Commons, creative commons share-alike attribution license; Português: Caricatura do presidente Lula. 2005, by Mariano Julio at Wikimedia Commons, creative commons attribution;Blacksmith icon symbol: hammer and anvil, at Wikimedia Commons, creative commons attribution license.

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Recent news out of Ohio concerning debt-ridden new lawyers underscores the difference between a mandatory membership bar association and a voluntary one. Ohio is one of 18 states where lawyers can practice without being forced to join their trade association.

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpg

In states where lawyers are forced to join a mandatory membership bar association as a precondition to practice, there are bar leaders with heads in the sand who act as though the crashing tides of debt drenching young lawyers were nonexistent.

But in voluntary states like Ohio, bar leaders have at last started examining the “unprecedented burdens faced by new lawyers.” Ten years past the “law school tuition bubble,” they may be a tad late — but in contrast to mandatory bars in Nevada and Arizona — at least they’re now considering potential solutions to the astronomical six-figure debt service new lawyers get along with their diplomas.

Futures Commission.

Tasked with researching and developing long-term solutions and “first action steps,” the Ohio State Bar Association established a 29-member Futures Commission more than one year ago to look at new lawyer burdens and “the need for acquisition of knowledge and the skills necessary to develop and carry on a successful practice; the lack of regulation for new legal service delivery options; and the widening access to justice gap.” In July, the Commission released its preliminary report.

Unlike mandatory bars that too often act below-the-radar through top-down mandates, the Ohio Bar sought input from members through town hall style meetings held in each of its 18 districts and supplemented these with input from its 2017 Leadership Academy class of new lawyers.

In Ohio, bar leaders believe “member satisfaction” is one of their association’s “core values” driving the stated goal of making “membership in the Ohio State Bar Association indispensable to Ohio lawyers.” 

It’s one thing to force lawyers to join an organization in order to earn a living in their chosen profession. But it’s another matter entirely when lawyers choose membership because the value proposition is so strong that membership is “indispensable.”

 

So much debt.

https://upload.wikimedia.org/wikipedia/commons/thumb/f/f9/Tin_Woodman.png/105px-Tin_Woodman.pngIt’s not like mandatory bars haven’t heard about the unprecedented tuition debt incurred by today’s young lawyers. More likely, they can’t relate to it. Many graduated from law school when women had big hair to the skies and fashion meant shoulder pads, parachute pants and Members Only jackets. Tuition then was a fraction of today’s troubles. Unsurprisingly, these bar leaders are tin-eared about the problem.

According to Law School Transparency (LST)  “legal education inflation far exceeds the inflation rate.

“In 1985, the average private school tuition was $7,526 (1985 dollars), which would now cost a student $16,294 (2013 dollars). Instead, the average tuition is $41,985 (2013 dollars). In other words, private law school is now 2.6 times as expensive as it was in 1985 after adjusting for inflation. Public school (for residents) is now about 5.5 times as expensive.”

As reported by the Cleveland Plain Dealer in July, “Ohio law school grads face debt of nearly $100,000 and few job prospects, report says,” the Commission’s report finds that the average 2015 Ohio law school graduate has approximately $98,475 in law school debt. Worse yet, “Only approximately 58 percent of 2015 Ohio law school graduates are employed in jobs requiring bar passage.”

And it’s only getting worse. For entering 2017 students, Ohio’s Law School Transparency (LST) numbers are even higher — well north of $150,000 on average.

In Arizona, LST projects even more sobering statistics for wanna-be lawyers starting law school in the Grand Canyon State this year. They should expect a “full price projected debt” for their J.D. degree of $175,084 if they are state residents graduating from Arizona State University. If they’re residents and start and finish at the University of Arizona, the number is $173,280.

At Arizona Summit Law School, one of the nation’s most expensive law schools, the “full price projected debt” is an astounding $252,571. This averages out to $200,978 among the three Arizona schools. It breaks out to an average debt service headache over 10 years of $2290 per month.

In Nevada, LST reports that students matriculating in 2017 at the University of Nevada, Las Vegas, the state’s only law school, can anticipate a “full price projected debt” of $175,310 and a $2000 per month nut over 10 years.

‘What me worry?’

https://upload.wikimedia.org/wikipedia/commons/thumb/3/36/Happiness.gif/209px-Happiness.gifThe root problem is that mandatory bars like those in Nevada and Arizona aspire to serve competing interests — those of the legal profession and those of the public. But it can’t be done because these interests often conflict.

Instead of alleviating practice burdens, for instance, mandatory bars constantly tinker with their bureaucratic spigots to open ever increasing cost, time and stress pressures on members. This is because they’re not necessarily looking out for the interests of lawyers.

In mandatory bar Nevada, for example, there’s a bar study group looking at the supposed merits of forcing all the state’s lawyers to buy professional liability insurance. If the model is mandatory bar Oregon, currently the only jurisdiction mandating professional liability insurance, expect only one blessed provider.

Moreover, the cost will be substantial. In 2017, Oregon lawyers ponied up a whopping $3,500 apiece for bare minimum coverage of $300,000 per incident and $300,000 aggregate. And Oregon has almost twice as many lawyers as Nevada.

Voluntary bars look out for the interests of members.

In closing, here’s what the Ohio Bar’s Futures Commission looked at:

•  How to ensure new lawyers enter the profession practice ready and without the crushing burden of student debt;
•  How busy lawyers at all stages of their careers can get the most out of their required continuing legal education credits;
•  The appropriate role of online legal service providers, limited multidisciplinary practice, fee-splitting and other emerging new business models in the delivery of legal services and if they can they help lawyers better serve clients and stay true to the values of the profession;
•  And with the real and perceived expense of legal services, how to ensure access to justice for all, regardless of income.

Besides supporting cost reducing law school initiatives, the Commission also took a departure from the latest gambit being promoted by mandatory bars: the licensing of non-lawyers to practice law. “Believing firmly that any provision of legal services should be done under the direction of a licensed attorney,” the Commission pronounced its opposition to “any effort to establish new categories of non-lawyer legal service providers (NLP) in Ohio and instead, support the development of programs or actions that would connect the unrepresented with available attorneys.”

So before state bars go all in and eliminate unauthorized practice of law rules to allow non-lawyers to directly compete with lawyers, something ought to be done to level the field. Stem the tide of unconscionable tuition debt from overpriced law schools.

But as they bang away on their Access to Justice drums, don’t expect a pronouncement like Ohio’s from mandatory bars in Washington, Utah and Arizona to name just three where non-lawyers already compete for business with lawyers.

Unfortunately, mandatory bar leaders aren’t listening. When they’re not holding expensive annual convention boondoggles like the Nevada Bar in Hawaii (2016), Texas (2017) and Illinois (2018), they’re busy finding new ways to make it harder for lawyers to earn a living. 

The Futures Commission Report is available here

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Credits: Bury your head in the sand, by Sander van der Wel at Wikimedia Commons;Tin Woodman, by William Wallace Denslow at Wikimedia Commons, public domain; Life user Manual, by Unuplusunu at Wikimedia Commons, public domain; Smug by IburiedPaul at Flickr Creative Commons Attribution;3D Shackled Debt by Chris Potter  at Flickr Creative Commons Attribution; Second Band Drummer 5 Mono, by Dave Shaver, at Flickr Creative Commons Attribution.

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