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Posts Tagged ‘State Bar of Nevada’

https://cdn.morguefile.com/imageData/public/files/h/hyperlux/preview/fldr_2005_05_29/file000516740961.jpgAfter reading about the death of 42-year old prominent, “outspoken” Las Vegas lawyer Jacob Hafter this past week, I thought again of how tough and even unforgiving the legal establishment can be. According to news reports, the Clark County, Nevada coroner’s office ruled Hafter’s death a suicide. See “Suspended Las Vegas lawyer Jacob Hafter dies at age 42.”

Last November, the Nevada Supreme Court handed down a six-month suspension order of Hafter “partly for Facebook comments accusing a judge of religious bias.” For more details concerning his disciplinary case see “Nevada Supreme Court suspends Las Vegas attorney Jacob Hafter.”

Hafter’s sudden unexpected and tragic death has roiled members of the Las Vegas legal community, some going as far as faulting the Nevada Bar for allegedly doing little to help the lawyers it disciplines.

Ironically, in May 2017 the Nevada Supreme Court approved a state bar petition mandating an additional annual hour of continuing legal education in substance abuse, addictive disorders and/or mental health. Also see “Overwrought and over exaggerated but no matter. Over prescribed CLE is always the regulators’ fix.”

Adding to the disquietude caused by Hafter’s death was unrelated news tonight about how Broward County, Florida Circuit Court Judge Merrillee Ehrlich “brutally berate a woman in a wheelchair. The woman died. The judge has quit.” The video is unpleasant to watch, underscoring again how hard the system can be, especially on non-lawyers, too. The Miami Herald story can be found here.

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Except for the part about giving a no-strings $1,000 per month to anyone amorphously defined “low-income” or “middle-income,” I mostly agreed with the sobering look at the Millenial Generation I read on Sunday. (Christmas Grinch or not, for a lot of reasons a $1,000 handout is a bad idea. For one, who’s going to pay for it? Don’t count on noblesse oblige.)

Just the same, I urge you to read the dire financial deconstruction in the cleverly conceptualized Highline story by Michael Hobbes, “Millenials Are Screwed,” subtitled, “Why millenials are facing the scariest financial future of any generation since the Great Depression.”

Their “touchstone experience” is “uncertainty” Hobbes explains. He runs through factors like salary stagnation, job and housing insecurity, and other cratered economic sectors to project that his will be “the first generation in modern history to be poorer than our parents.”

As it is, one in five currently live in poverty. And they have at least 300 percent more debt than their parents — more about that after. Plan for retirement? Buy a home? Not even.

And as for all that free money, here’s the other problem. The definition of “middle-income” or “middle class” is increasingly in the eye of the bean-holder. Uncle Joe Biden once ridiculously asserted, for example, that an annual salary of $379,000 was middle class.

Putting Biden’s neuron misfire into perspective, per the latest U.S. Census data, “In 2016, the median household income for all counties ranged between $22,045 and $134,609, with a median county-level value of $47,589.” A more learned economist than Uncle Joe says based on that data,“middle class ought to be defined as households making 50 percent higher and lower than the median.”

File:Soirée WikiCheese le 23 janvier 2015 - 57.jpgThat, of course, is not to dismiss with a straight face folks insisting through a mouthful of ripe ‘cru’ Beaujolais and Brie de Meaux that $300,000 to $400,000 annually is middle class.

Which brings me to something equally troubling, which is that millennials who are lawyers are smack in the throes of the same structural disadvantages Hobbes describes. Millenials earning a J.D. degree the past ten years have assured themselves of only one thing — astronomical student debt.

On average, borrowers in the law school class of 2014 took on $111,899 in debt according to US News & World Report. And the average indebtedness of 2016 law school graduates who incurred law school debt is worse still — in one word — appalling. Also see Stat Of The Week: Law School Graduate Debt Soars.”

https://upload.wikimedia.org/wikipedia/commons/thumb/3/37/Bury_your_head_in_the_sand.jpg/160px-Bury_your_head_in_the_sand.jpgMeantime, head-in-the-sand mandatory bar associations like the one in Nevada keep coming up with new ways to tighten the economic screws on their members, especially hard-pressed millenials. Last week the Nevada Bar sent a blast email survey asking members to weigh in on mandatory malpractice insurance. Also see “Join the Discussion: Whether Malpractice Insurance Should be Mandatory in Nevada.”

The survey was laughably replete with leading questions and agenda-driven outcome-bias. Knowing how these things work, the survey’s real purpose was to offer the tone-deaf governing board a fig leaf of cover for what they’re going to do anyway — no matter objections of the lawyer hoi polloi.

Happy then, the carriers with captive customers. Also for carriers — hallowed be the Nevada Bar since this insurance can easily run a few thousand dollars per year. But unhappy those who like Blanche Dubois will look to the kindness of carriers to resist the temptation to increase the cost of insurance across the board.

For Nevada’s millenial lawyers, it’s just one more structural disadvantage like all the ones faced by millenials generally. And as for the rest of us, time for a reassessment. Millenials aren’t entitled. And they aren’t slackers — they’re just screwed.

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Photo Credit: Soiree Wikicheese, by Lionel Allorge at Wikimedia Commons under GNU Free Documentation License ;Bury your head in the sand, by Sander van der Wel at Wikimedia Commons Creative Commons Attribution-Share Alike 2.0 Generic license.

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In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

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Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

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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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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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Elections for seats on the respective governing boards of the State Bar of Arizona and the State Bar of Nevada kicked off coincidentally on the same day, May 4, 2017. Although I’m an active member of the Nevada Bar, I can’t vote in board elections since I’m no longer a full-time resident of the Silver State. For this out-of-state Nevada lawyer, it’s taxation without representation, including coming new burdens like the board-approved extra hour of mandatory continuing legal education to support lawyer sobriety and sanity.

But even if I wanted to vote in Nevada, I haven’t a clue or a care about who’s running. Not like I know much about the 20 candidates running for 9 seats in Maricopa County, Arizona. Talk about a crowded field. Arizona has a 30-member board that “oversees the policy making and operation of the organization.”

https://upload.wikimedia.org/wikipedia/commons/thumb/5/50/Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpg/640px-Paper_bag_mask_with_4chan_smiley_at_Anon_raid.jpgThere’s only one openly declared reformer, although there may be one or two stealth nonconformists in the field. But if they’re not saying, who knows for certain?

The fact is it’s nothing but a popularity contest anyway. The candidates are largely unknown to most lawyers. How are you supposed pick 9 out of 20? It’s almost like a judicial retention election. So expect a lot of undervoting.

For lawyers in Pinal County, Arizona’s third-most populous county, there’s only one choice since only one candidate bothered to run. No surprise, it’s the pro status-quo incumbent.

What representation?

Taxation without representation used to be the order of the day here at least for board elections. But starting May 4th, out-of-state active members of the Arizona Bar can vote. Inactive and retired members, though, still have to assume the position. They can’t vote even though the Bar happily collects a yearly $265 and $215 respectively, for the compulsory ‘privilege’ of subsidizing a bloated bureaucracy.

The ugly truth is that even with the opportunity to vote, it’s taxation without representation just the same. State bar governing boards are free to act without the consent of those they supposedly represent, especially since board members don’t act as their actual representatives. Board members don’t serve to deliver the views of those that elected them. They’re told to be trustees of the public interest not guardians for the well-being, prosperity, and happiness of lawyers.

Unfortunately for candidates and their electors, it’s a conflicted interest that most who run haven’t acknowledged, understood or reconciled. They sidestep the Bar-advertised to serve-and-protect mission of regulating lawyers to protect the public. Instead, they campaign like they’re running for a trade association with promises of giving “increased value to all of its members—without imposing additional regulations” or providing “valuable services to its members.” 

https://upload.wikimedia.org/wikipedia/commons/thumb/5/51/Frijoles_refritos.jpg/320px-Frijoles_refritos.jpg

Term limits and beans.

Still, at least there will finally be new faces on the Arizona Board. That’s because the only good news coming out of the 2015 State Bar Mission & Governance Task Force was the overdue imposition of term limits on board members who with not much better to do wouldn’t go away. Holy frijoles, some of those board members were nearing 20 years on the board!

The new rule says a board member can serve “no more than three consecutive three-year terms.” Alas, like the proverbial bad penny, if after 9 consecutive years they sit out a full term, they can seek reelection to additional terms.

In Arizona, the election runs 15 days until 5 pm Friday, May 19th. Not that apparently members care. Based on voter turnout for the 2014 Arizona Bar Board Elections, fewer than one-quarter of active Arizona attorneys gave a hoot or a clue about voting for the candidates running that year.

In 2014, only 4093 members cast votes — and that was with much more interest and aggravation since the board had just passed an unwarranted dues increase. Clearly, the disinterest, resignation, and apathy is worse among lawyers than for political elections. With that in mind, I think voter turnout may be even less this time.

The solution.

The real solution is not a board election or ginning up voter enthusiasm. Structural change won’t come from within. The status quo is too well entrenched. The true believers are too satiated drinking bar integration Kool-aid.

Mandatory bars like Arizona’s and Nevada’s need to be split between a mandatory membership component that regulates lawyers to protect the public and a purely voluntary membership component that looks out for lawyers. Such a division of functions at last fixes the existing confusion and conflict between board members who view the mandatory bar as a regulatory agency and those who see its purpose as promoting member interests.

This means supporting reforms — either legislatively or through court petition. It doesn’t mean voting for more of the same.

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Photo Credits: “Run an effective meeting,” by Nguyen Hung Vu at Flickr Creative Commons attribution; “Paper bag Anon,” via Flickr Creative Commons through Wikimedia Commons; Diego’s frijoles at Flickr via Wikimedia Commons;”IMG_687,” by Michael Arrington at Flickr Creative Commons attribution; “wake up sheeple,” by ♫ feingoldens at Flickr Creative Commons attribution.

 

 

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If a petition submitted last year by Nevada’s Board of Governors is approved by the state supreme court, it’s going to cost lawyers a wee bit more money to practice in Nevada. Currently, Nevada lawyers are obligated to complete 12 hours of annual continuing legal education to keep their licenses. But if the state bar’s governing board has its way, a 13th hour will be tacked on to the annual requirement.

At an average cost of $40 per credit hour, this means that the 5th highest cost to practice mandatory bar in the U.S. will just be that much more expensive. Nevada will top out at just over $1,000 per year between mandatory annual fees of $490 and soon, 13 hours of mandatory continuing legal education.

The original petition asked that of the current 12 required hours of continuing legal education, 1 CLE credit be mandated in the area of “substance abuse, addictive disorders and/or mental health issues that impair professional competence.” Somewhere along the way, however, there was an increase in the total hours required. It became a petition that increases annual mandatory hours from 12 to 13 with the new required hour in the aforementioned areas.

Petition ADKT 0478 was filed with the Nevada Supreme Court in January 2016 with oral argument last June. Unfortunately, the chance to either complain or to applaud has come and gone. It’s only a matter of time now for the Court to issue its Order for ‘lucky’ No. 13. To quote Hank Jr., “It’s all over but the crying.”

Gobsmacked.

I really must crawl out from under my desert boulder. How did this newest imposition, this latest cost to practice burden slip past? The gobsmacking news came by way of the Nevada Bar’s “Message From The President” in the April 2017 Nevada Lawyer magazine.

I rarely read the dull bar magazine except for checking the Bar Counsel Report each month to see if anyone I know has been pierced by the sword of lawyer discipline. For some reason, I read Nevada Bar President Bryan Scott’s presidential epistle in April where he briefly mentioned the mandatory bar bureaucracy’s latest ‘feel-good’ do-something impediment. Scott also helpfully offered that “Supplementing this petition, the state bar has enhanced its curriculum to ensure attorneys have access to quality CLE programs related to these important topics.” Well, that’s no surprise. CLE is big business for state bars.

To be fair, in reply to my ‘ how dare you’ email query, Scott said, “We did not do this as a money-making venture. In fact, should the Court issue an order, we expect to offer a CLE on this topic at no charge.” Let’s see how long that lasts.

No proof CLE does anything.

I won’t paraphrase Roger “Verbal” Kint but the greatest trick ever pulled was convincing the legal establishment that forcing lawyers to take continuing legal education classes would make them more competent, more ethical, more professional or in the latest wrinkle in Nevada — more sober. The fact is there’s never been empirical proof that CLE delivers more competency, ethics, professionalism — or sobriety. As a matter of fact, there isn’t even the most rudimentary form of subject matter assessment since CLE participants are never tested to see what they have learned. The testing demands are greater getting a speeding ticket dismissed via a defensive driving course.

As for tutoring the trait of improved sobriety, the petition does a terrible job of explaining why a mandatory CLE in abuse, addiction and mental health issues is necessary. To be fair, there’s a talking point Scott sent that mentions studies from the 80’s that “have shown a connection between the legal profession and higher rates of mental health issues and related addictive disorders.” The same reference adds that “In February of this year, a more definitive study was released showing attorneys display addiction levels of dependent drinking at 20.6 percent as compared to 11.8 percent of a generally highly educated workforce.”

If that’s true, the rest of the population is in even worse shape. Should the Nanny State start requiring everybody take a class in sobriety? According to a Newsweek report, 30 percent of Americans have had an alcohol-use disorder. Citing a study published in the journal JAMA Psychiatry, the article states: “America has a drinking problem, and it’s getting worse. A new study shows that 32 million Americans, nearly one in seven adults, have struggled with a serious alcohol problem in the last year alone. It gets worse if you look at numbers across people’s entire lives: In that case, nearly one-third have suffered an “alcohol-use disorder.”

https://cdn.someecards.com/someecards/usercards/630ae40facf324702bf98d936c73f348eb.pngBut even if you take at face value that lawyers are worse on substance abuse/mental health than the rest of the population, where’s the proof a one-hour class does anything to fix the problem? Then again, if there’s one thing lawyers are good at is reaching their conclusions.

So appropriately, under “Conclusion,” the petition jumps to the conclusion that because the board of governors’ purposes include “upholding the honor, integrity, professionalism and dignity of the profession of law and the enhancement of the professional competence and ethical conduct of members of the bar . . . mandatory education in abuse, addiction and mental health is necessary.” And it’s also “essential to public protection.”

More lawyer shape-shifting in the offing.

In September last year, the Florida Supreme Court approved a rule amendment granting Florida the dubious distinction of being first to require lawyers to take at least three hours of CLE in an approved technology program as part of the 33 total hours of CLE that Florida lawyers are forced to take over a three-year period. More than half the states have adopted the duty of technology competence for lawyers. It’s only a matter of time before other jurisdictions follow Florida and start demanding mandatory CLE in technology courses, too.

The ABA is the organization we have to ‘thank’ for these new recommended mandates, including mandatory substance abuse CLE. And it now has one more recommended lawyer transformation encumbrance in the works. Be on the look out for mandatory diversity continuing legal education.

Not satisfied with approving a new diversity policy for itself directing its ABA CLE program panelists be diverse, last June the ABA passed Resolution 107.  It asks “licensing and regulatory authorities that require MCLE to make diversity and inclusion programs a separate credit, but without increasing the total number of hours required.”

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Photo credit: “Surprise,” by Erik Cleves Kristensen at Flickr Creative Commons attribution license; “the view from below” by David Long at Flickr Creative Commons attribution license.

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