Feeds:
Posts
Comments

Posts Tagged ‘voluntary bar’

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.

___________________________________________________________________________________

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.”

_________________________________________________________________

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.

Advertisements

Read Full Post »

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.

Read Full Post »

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

_____________________________

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.

Read Full Post »

“. . . the membership, what are they? Peons that can be ignored by the higher-ups in the bar and the court get together? That’s the concern here.” – Washington State Senator Mike Padden, Committee Chair, Law and Justice, directed at WSBA officials’ testimony, 2-14-17.

Entertainment 606As previously reported, the mandatory membership Washington State Bar Association (WSBA) has its hands full following the state supreme court’s de facto nullification of a member referendum that challenged a board-approved 141% mandatory dues hike. No matter that the referendum process is provided for in the bylaws. Or that its terms were legally satisfied by more than the requisite signatures to qualify. Or that board members might have done delighted hand stands once the high court pronounced its blessings upon them.

Never mind, too, member due process even though Sen. Mike Padden opined due process rights were violated by actions he termed “under the radar.” Sen. Padden is a lawyer and a member of the Washington Bar and his Law and Justice Senate Committee heard testimony February 14, 2017 from proponents and opponents of his bill, SB 5721. It requires the Washington State Bar Association“to obtain an affirmative vote prior to increasing bar dues for membership.”

The bill expressly states that “any membership fee increase approved by the board must be submitted to active members for approval by a vote. Any fee increase not receiving a majority of member votes received is disapproved and may not be assessed to any member. This subsection applies retroactively to fee increases approved by the board in 2016 or later.” Arizona lawyers can dream.

https://cdn.morguefile.com/imageData/public/files/l/luisrock62/preview/fldr_2004_08_23/file000180666737.jpgBut what’s clear here is that when a member referendum threatens to overturn a mandatory dues increase, well that’s just too inconvenient for bar leaders hellbent on wresting more money for the bureaucratic maw.

The referendum was signed by more than 2,100 members. And while they may have been stymied by the board and the court, give credit to Washington’s lawyers for not sitting on their hands when confronted with a momentary setback. As a result, things are no longer moving according to plan for the WSBA.

Moreover, such quintessential imperiousness can have lasting consequences, including possibly galvanizing members to as Sen. Padden conjectured of his bill’s proponents that “their only option is a voluntary bar like other states have if these kinds of activities are going to go on . . . violating due process rights. . . .”

Behind the woodshed.

https://cdn.morguefile.com/imageData/public/files/g/gracey/preview/fldr_2004_08_22/file000930089334.jpgIt’s particularly gratifying to acknowledge yet another legislature taking its own homegrown gaggle of arrogant bar leaders to the proverbial woodshed for in this case, a very public dressing down. The same recently happened in front of Arizona’s House Judiciary Committee where Committee Chair Rep. Eddie Farnsworth, an attorney and member of the bar, became increasingly frustrated with testimony opposing bar reform legislation from the State Bar of Arizona and its defenders.

Not so much for the WSBA.

Washington lawyer Angus Lee, one of the proponents of SB 5721, followed up his testimony before the Senate Committee on Law and Justice by posting about it on his blog. In classic understatement, Lee stated, The Senate hearing on WSBA membership dues, went well for the membership. Not so much for the WSBA.” The bill was passed by the Law and Justice Committee with a “do pass” recommendation.

Lee further declared, “Hearing highlights are a must watch for any dues paying WSBA member.” But why stop there? They’re a “must watch” for mandatory bar dues paying members everywhere.

.

Read Full Post »

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.

__________________________________________

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 “Frankenstein.”

 

 

Read Full Post »

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

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

Rep. Anthony Kern

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

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

Trade Association and Regulator.

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

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

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

A Voluntary Bar.

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

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

California Bar Deunification.

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

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

_____________________________________________________

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.

.

Read Full Post »

petition | by League of Women Voters of CaliforniaA petition was filed today asking the Arizona Supreme Court to amend Rule 32(c) and (d) so as to split the functions of the State Bar of Arizona into two distinct subsets, a mandatory membership organization (“Mandatory Bar”) and a purely voluntary membership organization (“Voluntary Bar”). The amendment to the Court Rules would maintain the current mandatory membership requirement for all lawyers but (1) eliminate mandatory membership dues for non-regulatory functions and (2) allow voluntary contributions for all non-regulatory functions. Read the petition here.

The petition was filed by Sherman & Howard attorney Gregory Falls on behalf of the Goldwater Institute. By way of explanation on its website, the Goldwater Institute reiterates its opposition to “conditioning the practice of law on bar membership in Arizona because coerced membership violates the rights to free speech and free association guaranteed by the United States and Arizona Constitutions.”

It is for this reason, the Institute says it is “sponsoring a rule change petition to allow attorneys to practice law without being forced to fund the lobbying and other non-regulatory functions of the State Bar of Arizona.”

Change Management | by Jurgen AppeloThe petition is reminiscent of HB2221, which the petition acknowledges, “called for a less nuanced version of what Petitioner proposes here.” HB2221 came within 5 votes of clearing the Arizona Legislature and landing on the governor’s desk during the 2016 legislative session. Like today’s petition, HB2221 was modeled on the Nebraska Supreme Court’s bifurcated approach to bar membership articulated in its December 6, 2013 decision Petition For Rule To Create Vol. State Bar Assn. 286 Neb. 108.

j0289753The Nebraska Supreme Court ordered that the requirement be left in place mandating membership in the Nebraska State Bar Association. But the Court also lifted the requirement that attorneys fund the Nebraska Bar’s non-regulatory functions. This meant Nebraska attorneys still paid regulatory and disciplinary costs but were no longer forced to subsidize the Nebraska Bar’s speech and its non-regulatory activities.

In its website statement, the Goldwater Institute acknowledges that “the Nebraska Model falls short of the fully voluntary model used in 18 other states.” It adds, however, that Nebraska’s bifurcated model “is a significant positive step toward associational freedom.”

Another front.

The petition filing opens up another front in the long-term campaign to reform lawyer regulation in Arizona. Along with continuing legislative efforts, the goal is to remediate a system not only rife with inequity but which represents a continuing threat to consumers. In addition to impinging constitutional rights on lawyers by preconditioning membership in a trade association to earn a living in their chosen profession, mandatory bar associations have an inherent conflict of interest because they act as both regulators of and trade associations for lawyers. And that conflict of interest is further exacerbated when lawyers elect a controlling number of other lawyers to represent them in their own regulatory board. By its very nature, then, this cartel-protection system threatens capture of the regulatory board by lawyers at the expense of the public.

Jen, kissing the First Amendment goodbye? | by jasoneppinkConditioning the practice of law on bar membership also violates lawyers’ constitutional rights. The U.S. Supreme Court has found that the only compelling state interest in coercive bar association membership is to improve the practice of law through lawyer regulation. But the fact is that lawyer regulation and improved legal practice can be attained through less restrictive means. 18 states — Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Vermont — have already found ways to regulate attorneys without compelling membership

Arizona lawyers aren’t the only professionals concerned with a mandatory bar’s opacity, bureaucratic wastefulness, and divided loyalties to the public and lawyers. Indeed, attorney and public members of the California State Bar’s Board of Trustees are working again with California Legislators to bifurcate that Bar’s regulatory and trade association functions. See Calif. State Bar Blasted for Lack of Transparency  and Lawmakers Fight to Reform California Bar After Audits Skewer Agency for Mismanagement, Lack of Transparency, and Pricey Salaries.

_____________________________________________

Credits: Petition, by League of Women Voters of California LWVC at Flickr Creative Commons Attribution license; Change Management by Jurgen Appelo at Flickr Creative Commons Attribution License; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution.

Read Full Post »

Older Posts »