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Posts Tagged ‘State Bar of California’

https://cdn.morguefile.com/imageData/public/files/a/almogaver/preview/fldr_2008_11_07/file000136151699.jpgYesterday, Arizona took one more step toward reforming the way lawyers are regulated in the state. By a vote of 31-29, the Arizona House passed HB2295. This bill splits the State Bar of Arizona into two subsets. One preserves the mandatory membership character in order to function as an independent regulatory quasi-agency that makes paramount the protection of the public from unethical lawyers. The other subset becomes a voluntary organization that engages solely in the kinds of non-regulatory activities more traditionally associated with professional trade associations. It’s worth watching the HB2295 floor debate here starting at the 3:34 minute mark.

A conflicted identity.

Politicians 81Like mandatory bars elsewhere, the Arizona Bar suffers from what former Wisconsin State Bar President Steven Levine once described as “a schizophrenic identity.”

In a just published post at The Legal Watchdog, Wisconsin lawyer, blogger, author and scholar Michael Cicchini mentions the article, State Bar’s limits on financial transparency create budgetary blind spots (subscription required) where author James Briggs writes that “The State Bar straddles a line between being a state agency, under the jurisdiction of the Supreme Court, and a private corporation, which is not compelled to share financial information even with the people elected to govern it.” The author then quotes Levine on the Wisconsin Bar.

FunHouse 119But Levine could just as easily be referring to Arizona’s Bar while talking about Wisconsin, “When it comes to the advantages of being a state entity . . . they claim to be a state agency.  But when they want to act in private or in secret and avoid all public requirements state agencies are required to follow, they say they’re just a private organization.”1

Case in point when I filed a public records request last July with the State Bar of Arizona asking for lobbying expenditure disclosures concerning its opposition to bar reform legislation, the Bar’s response included the following lawyer doublespeak: “However, without waiving our right to assert any future objections applicable to a nonprofit organization either by rule or statute, this organization believes in transparency and will provide answers when possible.”

arizona_bar_frank2

Can’t serve two masters or walk around with two heads.

Two hats for two heads.2

By deunifying the regulator/trade association functions, HB2295 solves the longtime problem the State Bar of Arizona has been burdened with, which is trying to serve two masters by wearing two hats for two heads. The result has been an irreconcilable conflict of interest. Why? Because the interests of the public and the interests of lawyers are not the same. More often than not, they are in conflict.

Consequently, the State Bar should not simultaneously serve the interests of the public and the interests of the legal profession. If it truly means to protect the public, then the interests of the public have to be foremost. Because HB2295 separates the State Bar’s regulatory and disciplinary functions from the State Bar’s trade association services and activities, it improves the protection of the public from lawyers who violate the canons of professional ethics.

Moreover, by dividing the regulatory and disciplinary functions from its lawyer trade association activities and transferring all regulation to the Arizona Supreme Court, HB2295 helps to bring lawyer regulation more fully compliant with the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

In Dental Examiners, the nation’s high court ruled that state regulatory bodies controlled by “active market participants” – such as practicing lawyers -­ are not immune from federal antitrust laws. The solution then, as provided under paragraph B of HB2295 is “active supervision” by the state Supreme Court or by an independent body under the Court — not controlled by practicing lawyers. Despite the recent work of a Court State Bar task force, the State Bar of Arizona continues to operate under a lawyer-dominant governing board elected by lawyers.

HB2295 now moves to the Arizona Senate where the State Bar of Arizona hopes its lobbyists and well-paid executives can sustain a firewall sufficient to stop the spread of reform.

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1 Some 14 years ago, in a First Amendment suit against the State Bar of Arizona brought by former bar member Edmund Kahn, the U.S. District Court for Arizona in an unpublished opinion discussed whether a state bar was entitled to Eleventh Amendment immunity. The Arizona Bar, which usually asserts it’s a private association not a state agency, tried in this instance to hide behind the Eleventh Amendment by claiming a “level of integration between the State Bar and the Arizona Supreme Court.” The Court distinguished the cases the State Bar invoked, which were Bates v. State Bar of Arizona involving lawyer discipline; Hoover v. Ronwin concerning bar exams and another discipline case in O’Connor v. State of Nevada. The District Court stated that when it comes to cases that generally challenge either the state bar’s disciplinary function or its function administering bar exams and admitting new lawyers, “the state bar clearly acts as an arm of the Arizona Supreme Court in regulating the practice of law.” But the District Court next made a most critical distinction, “In this case, Plaintiff challenges the way in which the state bar spends mandatory dues on non-regulatory functions and the bar’s procedures for addressing objections to its spending. Because this suit challenges the bar’s spending on non-regulatory programs, the link between the state bar and the Arizona Supreme Court is more tenuous.” The Court then went on to declare that the State Bar, a “non-profit corporation” did not qualify as a state agency for Eleventh Amendment purposes because among other factors, it also maintained “its own treasury and any award of damages would come from the state bar’s funds rather than the state treasury.”

2 Cartoon inspired by a bar executive’s email reference to a lawmaker last session counterintuitively overlooking the Bar’s own 800 lb Chimera in its parlor when describing a bifurcated state bar as “a two-headed Frankenstein.”

 

 

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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.

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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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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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Photo by, John O’Neill, Creative Commons Attribution-Share Alike 3.0 Unported license

A scathing state auditor’s report released last month body slammed the State Bar of California for rushing disciplinary cases to shorten a longstanding and growing backlog; for settling cases with less severity; and for going $50 million over-budget for a building renovation. The report went on to say the Cal Bar “has not consistently protected the public through its attorney discipline process and lacks accountability.” See “Auditor blasts State Bar for inconsistent discipline of bad lawyers, shoddy finances.”

To the surprise of no one, the Cal Bar accepted the auditor’s findings and even unconvincingly claimed to have already been working on the problems — “before the audit began.” Right! And I was going on a diet when they caught me eating that pint of ice cream.

This is the same state bar Arizona Supreme Court’s on State Bar Mission and Governance inexplicably opted to consult about reforming its governance structure. Sure the California Bar was ordered by the state legislature in 2010 to create a Governance in the Public Interest Task Force. And sure that task force was charged with recommending ways to “improve the existing system so as to best advance the goals of ensuring public protection.” But why would anyone think the California Bar’s ‘reforms’ were an exemplar worth studying?

https://i2.wp.com/5.kicksonfire.net/wp-content/uploads/2015/07/Seinfeld-Newman.gifWhen I heard about it, I thought it was risibly ridiculous that Arizona’s Task Force would look to the bar bureaucrats next door for insights on structural governance reform. Only an out-of-touch legal establishment with blinders on like Arizona’s would come up with that brainstorm. That’s like asking Kim Kardashian about modesty or Donald Trump about hairdos.

A dysfunctional mess.

Stressed businessman

“A consultant is a guy with gray hair so he can appear distinguished and hemorrhoids so he can look concerned.” – Malcolm Berko

For some 30 years — and longer, the California State Bar has been a dysfunctional and deservedly criticized bureaucratic mess. No matter that California Bar leaders have paid lip service to reform for years. The criticisms are legion. In 1997, then-California Gov. Pete Wilson vetoed a two-year fee authorization for the California State Bar because its actions had confirmed the charges of disgruntled members who characterized the bar as “bloated, arrogant, oblivious and unresponsive.”

An earlier audit in 2009 was critical of the Cal Bar over“negotiated salary increases over the past five years, an increase of $12 million in the operation of the discipline system — roughly 5 percent per year — while the number of inquiries declined.” And this was also the time period when unbelievably, a former Bar employee embezzled nearly $676,000 while no one was evidently minding the store. No wonder then-Governor Arnold Schwarzenegger vetoed legislation that allowed the Bar to collect its annual dues.

So this latest critical audit report is no surprise to longtime Cal Bar watchers. One inveterate and knowledgeable critic, the legal ethicist and law professor, Richard Zitrin, even lauds the legislative oversight of the Bar — something some Arizona lawyers gag on as anathema. I’m personally glad that the legislature has a say-so over the bar. Many of the reforms to the legal system that benefit the public came from the legislature, while the bar has repeatedly protected itself rather than the public,” Zitrin commented at the Legal Ethics Forum Blog.

Office Stress 92As for Arizona Court’s Task Force, there’s more embarrassment. Just months after the Task Force consulted with the California Bar’s then-Executive Director Joseph Dunn and per the meeting minutes, not long after Dunn told Task Force members about the Cal Bar’s reforms and how the board was “less contentious” and now “unified” and how the organization was “more focused, professional, and collegial” — Dunn was fired. I guess he didn’t see that one coming.

But at least the Arizona Task Force gave Dunn a round of applause for his presentation. So much for Dunn’s happy Kumbaya talk about the “proactive” California Bar and how its reforms are “the best thing that’s ever happened to the bar.”

People 6043Indeed, according to a Los Angeles Times story, “Accusations fly as State Bar of California leader Joe Dunn fights ouster, the California Bar is “once again beset with conflict, riddled with accusations involving expense accounts and ethics.” Nothing new to longtime critics of the California Bar. One California law professor told the newspaper, “The bar is just further descending into a banana republic. It is totally dysfunctional and should be unraveled.”

And since Dunn, a former state senator and trial lawyer, is not a man to take termination lying down, he is fighting back in the court of public opinion and in county superior court. He filed suit on November 13, 2014 alleging wrongful termination and claimed whistleblower liability and retaliation for allegedly reporting illegal activities and ethical breaches by high-ranking Cal Bar officials. Also see “Five things to know about the State Bar dustup with former director.”

Busy Business Women 40Too bad the Arizona Task Force was so clueless about their next-door neighbors. Otherwise, it might have refrained from a Golden State consultation or ironically enough, according to its latest list of reform recommendations, from mirroring many of the same milquetoast ‘reforms’ adopted by the California Task Force. These underwhelmingly include maintaining compulsory membership; reducing the size of the governing board; changing the board’s name from “governors” to “trustees;” and adding new qualifications, term limits and related procedures.

Then again the legal elites around here don’t have to worry about independent state audits.

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AndrewThomas.jpgAs he said he’d do, disbarred former Maricopa County Attorney Andrew Thomas is running for Governor of Arizona — along with the usual Arizona collection of migrant-demonizing far right extremists — each battling to outdo the other on talking tough about the border.

Nothing plays so well in Arizona than bashing ‘dem illegals’ and scaring seniors with tales about border-crossing brown-skinned border brothers.

But thanks to Arizona’s semi-closed primary system; customary low voter turnout and a reliably apathetic electorate unwilling to “DeKook the State Capitol,” it won’t matter who wins. One of the extremists will be elected and it’ll be more of the same for Arizona.

Payback.

‘Candy Andy,’ though, is back. Not that he really ever went away. In the words of the late not-so-great former Arizona Governor Evan Meacham, “I’ll tell you what, if a band of homosexuals and a few dissident Democrats can get me out of office, why heavens, the state deserves what else they can get.”  

And now that he wants to be governor, Thomas is probably hoping for the ‘Big Payback.’ Maybe he even thinks he’ll get the chance to pull a ‘California Governor Pete Wilson’ and give the State Bar of Arizona as much heartburn as Wilson gave the California Bar in 1997.

As for his chances — I wouldn’t rule him out. After all, this is a state with “asinus aspirations aplenty” and with an electorate that made Jan Brewer governor twice and Joe Arpaio Maricopa County Sheriff six times. So anything’s possible when you set the bar that low.

A week ago Tuesday, Thomas began running his first 30-second campaign ad. And he hit the controversy superfecta hammering on “illegal immigration;” condemning “liberal judges;” opposing “the gay lobby;” and aggravating trading-partner Mexico by crossing out the Mexican flag. Clearly he’s not lost his touch for serving red meat to his base or for making ‘amigos’ across the border.

Schadenfreude: Happiness at the Misfortune of Others.

 But speaking of dishes best served cold, I have little doubt Thomas was elated when in April of this year, news reports announced that his arch-nemesis, John Gleason, had been forced out of his job as the chief lord of prosecutorial discipline for the Oregon State Bar. After retiring from his post as head of Colorado’s Office of Attorney Regulation Counsel, Gleason had shown up in Oregon last March to take the job as Oregon State Bar disciplinary counsel and director of regulatory services. It didn’t turn out to be a long stint — only about a year. According to reports, it was “a short stormy run that antagonized lawyers around the state and divided the Oregon State Bar.”Besides asking for an ABA task force to come in to review Oregon’s disciplinary system, Gleason got some lawyers riled when he proposed some sweeping changes to the way lawyers are disciplined for ethical violations in Oregon. He proposed creating the office of Presiding Disciplinary Judge; a complete rewrite of the Bar’s Rules of Procedure; and a substantial reduction in the oversight and authority of the bar’s volunteer State Professional Responsibility Board in favor of more centralized authority with Gleason’s office of disciplinary counsel.

After his 2012 disbarment, Thomas told the press he’d been the victim of “a political witchhunt” for having “brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license.” None of that got him anywhere with the judge but it might sell in Peoria — Arizona. For more background, see The ABA Journal’s “The Maricopa Courthouse War.”

But for all those who crowed Thomas’ comeuppance, the fact he’s running for governor has to grate — and with $754,000 in public financing funds, to boot.

And speaking of dishes best served cold, I have little doubt Thomas was elated when this past April, there occurred one more instance of schadenfreude cutting both ways. Or said more familiarly, another testament to ‘what goes around, comes around.’ John Gleason, the lead prosecutor, brought in at the behest of the Arizona bar and the state supreme court to bring Thomas to heel gave up his job in Oregon.

Gleason had been Colorado’s Attorney Regulation Honcho when he took the temporary gig in Arizona to prosecute Thomas for abusing his county attorney powers. In a 33-page complaint, Thomas and his cohorts were accused of misusing the office’s broad prosecutorial power to go after political enemies.

After wrapping up the Thomas et al. prosecution and then retiring from his post as head of Colorado’s Office of Attorney Regulation Counsel, Gleason turned up in Oregon in March 2013 to take the job as Oregon State Bar disciplinary counsel and director of regulatory services.

It didn’t turn out to be a long stint — only about a year. According to a news account, it was “a short stormy run that antagonized lawyers around the state and divided the Oregon State Bar.”

Besides asking for an ABA task force to review Oregon’s disciplinary system, Gleason had riled up lawyers by proposing sweeping changes to the way Oregon lawyers are disciplined for ethical violations. He proposed creating something he’s especially fond of, the office of Presiding Disciplinary Judge. He also recommended rewriting completely the Bar’s Rules of Procedure. Finally, he proposed reducing substantially the oversight and authority of the bar’s volunteer State Professional Responsibility Board in favor of centralized authority under his own office of disciplinary counsel.

Too bad he couldn’t leave well enough alone and just sit on his laurels for defrocking Thomas. For stories that lionize and crown him in those laurels see “All Kinds of Horrible Things Happened’: Investigating the Biggest Ethical Misconduct Case in the Nation” and “Prosecutor on Trial: ExMaricopa County Attorney.” With such plaudits and press clippings, he just couldn’t resist bringing his bumptious beneficent benefactions to the Beaver State.

For balance and other perspectives on Gleason, read “Scott McInnis plagiarism scandal no big deal to attorney discipline czar” and “Why Colorado Attorneys Dont Have Spines” and particularly, “A Travesty of Justice in Colorado: Lawyer Suspended for A Year and A Day for WINNING His Client’s Case.”

As for where Gleason turns up next, who knows? Consigned to Colorado, he may just stay retired and look for a regular golf partner. Although as far as wanna-be Governor Thomas’s concerned, at least he’s not back in Arizona. But if he does return to the desert kookracy, guess who’s hoping will have the last laugh?

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Photo Credits: Jan Brewer – the Guard, by DonkeyHotey at Flickr via Creative Commons-license requiring attribution;Mr Schadenfreude, by Duncan Hull at Flickr via Creative Commons-license requiring attribution.

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