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Posts Tagged ‘voluntary bar’

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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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.

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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.

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Samoan man in Hawaii | by foot fingers

Voluntary is ‘mo bettah.’

 

 Voluntary bar jurisdictions:

  1. Have a longer history than mandatory bar jurisdictions. The so-called integration movement didn’t start until 1913. That’s when the now defunct American Judicature Society‘s Herbert Harley motivated by the goals of overcoming low voluntary membership rolls; increasing revenues; reducing fragmentation; and enhancing professionalism; adopted bar unification as part of the Society’s law reform movement. According to research by Professor Theodore Schneyer, “voluntary state bar memberships in the 1920s included only 10% to 30% of the bar.” Parenthetically, predating the creation of the American Bar Association by 4 years and besting the New York State Bar Association by 2 years, the Iowa State Bar Association was formed in 1874 and claims to be “the oldest voluntary state bar association in the United States.” 18 jurisdictions in the U.S. are still voluntary. And to this day, voluntary bar membership in Iowa approaches 90%;
  2. Scandalized | by CarbonNYC [in SF!]Tend to have lower overall costs to practice; See Fact Check;

  3. Accomplish the public-protection goals of regulating discipline, managing bar admission, ensuring ethical standards, and registering lawyers, without integrating an existing bar association because these objectives are subject to statute or court rule and are not the responsibility of an integrated bar. For example, virtually every state in the country has in place court rules or statutes prescribing caretaker regulations when a lawyer disappears, dies, or is declared incompetent. And the same holds true for client protection funds, which likewise exist in both voluntary and mandatory bar jurisdictions. (The State Bar of Arizona makes much of its own lawyer caretaker conservatorship program although it budgets a mere 0.206% of a $14.5M budget to further buttress the purported necessity of a mandatory bar by virtue of having the program. But as of June 1, 2015 like almost every state in the country, Arizona has no rule requiring an attorney to designate a successor/surrogate/receiver in case of death or disability. A Rules Petition, however, was submitted in January but the matter was continued);

  4. Avoid the conflicts of interest between lawyers and the public. Voluntary state bar associations are autonomous private professional associations that unlike compulsory bar associations serve the interests of their voluntary members. They do not function like public agencies or regulatory bodies that subordinate member interests in favor of what mandatory bar leaders define as ‘the public good.’ And also unlike mandatory bar associations, the financial self-interest of voluntary associations is tied to a value proposition. Lawyers will refuse to maintain consensual membership in an association where the financial cost exceeds the value received;

  5. Without the Keller restrictions imposed on mandatory membership bar associations, voluntary state bar associations amplify the legal profession’s legislative voice in the lawmaking advocacy process. See, for example, Minnesota State Bar Government Relations and the Illinois State Bar Legislative Affairs Department;

  6. Jen, kissing the First Amendment goodbye? | by jasoneppinkProtect lawyer First Amendment rights without infringing on free speech and an individual’s freedom not to associate, which in the case of mandatory bar jurisdictions, results in the individual being compelled as a condition of earning a living in their profession, to contribute to an association which uses those fees to conduct activities to which that individual objects;

  7. Avoid recurring litigation over the use of compulsory dues for ideological activities; Most recently, see Fleck v. McDonald;

  8. Offer programs and services that favorably compare and even exceed those offered by mandatory state bar associations, including law office management practice services; insurance programs; reduced-cost and free CLE; Find-a-Lawyer member directories; Access to Justice initiatives; job hunting resources; Sections and Committees; lawyer referral services; Publications; Young Lawyer Divisions; Legal Research like Fastcase and Casemaker; Mentoring programs; leadership development programs; Annual Meetings; high school mock trial programs; community pro bono; ethics opinions and practice resources and even online practice tools. (Instead of making a good faith effort to ascertain the scope, content and quality of programs, services, and activities conducted by voluntary bars, mandatory bar proponents prefer to hide behind patent nonsense to justify compelled association);

  9. Are no different from mandatory bar associations in offering lawyer assistance resources to assist lawyers with problems with alcoholism, drug abuse and mental or emotional disorders. See, for instance, the New York State Bar Association’s Lawyer and Judges Assistance Program;

  10. Do not increase costs to the public since lawyers pay 100% of the costs of lawyer regulation in every U.S. state and territory. It is completely fallacious for mandatory bar proponents to spuriously claim that a mandatory bar has to be preserved because their programs and services could not be duplicated by a voluntary bar or that the elimination of a mandatory bar would place burdens on taxpayers. 

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Photo Credits: Samoan man in Hawaii, by Steve Bozak at Flickr Creative Commons Attribution; Jen, kissing the first amendment goodbye, by Jason Eppink at Flickr Creative Commons Attribution; Scandalized by David Goehring Flickr Creative Commons Attribution.

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Even in Maricopa County, Arizona where most everyone has transplanted from someplace else, no one likes hearing about how things were done elsewhere. It’s as welcome as grey-whiskered prattle about “how things were when I was a kid.” Put a sock in it.

All the same, ignore the sock hanging out my mouth while I favorably compare what my former home state of Nevada just did concerning the unauthorized practice of law (UPL).

UPL as most of you know is a tiresome pet peeve of mine. But for all my frustration, as far as Arizona’s concerned when it comes to dealing seriously with UPL, it’s rubbing fingers and playing the world’s tiniest violin.

But back in the Silver State there’s AB74, a new Nevada law effective March 1, 2014 that imposes new controls on legal document preparation services — or what lawyers think of as the unauthorized practice of law. Fortunately, instead of creating another self-perpetuating legal establishment bureaucracy like in Arizona, AB74 requires document preparation services to register with the Secretary of State; establishes qualifications for registration; requires the filing of a bond; regulates the business practices of document preparation services; authorizes disciplinary action and other remedies in specified circumstances; and provides civil and (unlike Arizona) criminal penalties.

File:Otis fence.jpgNevada’s approach is admirably distinguishable from what the ‘self-enlightened’ legal elites did in Arizona. Here the legal eagles didn’t soar to curtail the unauthorized practice of law. Instead the privileged classes ‘fixed’ it by saying it wasn’t UPL. Arizona exempted out a slew of non-lawyers from UPL by judicial fiat.

As a consequence, Also see “Immcrimination: Document preparation in Arizona in the wake of USA v. Arizona.”

No “conscious uncoupling” from the mandatory bar.

Which gets me to say something nice for a change about a state bar president, Nevada’s Alan J. Lefebvre. He’s finishing out his term and in his last several presidential epistles in the bar’s mouthpiece magazine, Nevada Lawyer, Lefebvre’s demonstrated refreshing candor — at least by complaisant state bar standards. He’s decried the current state of the legal profession, which has “done nothing to protect and rescue” newly graduated debt-indentured lawyer graduates. See “President’s Message: “Maybe Reparations are Owed?”

photoAnd unlike the self-congratulatory B.S. typically spewed by bar management milquetoast sock puppets, Lefebvre has also inveighed against the bureaucratic status quo.

Otherwise, as mandatory bar presidents go, the ones with any real cojones have been those never-say-quit anti-mandatory bar presidents in Wisconsin — three of the last four elected. Despite long odds, they’ve been fighting for a voluntary bar for many years. And trying to divorce themselves from compulsory bar membership, they’ve waged their own version of “conscious uncoupling” well before Gwyneth Paltrow was therapeutically psycho-babbling about it.

Sometime ago, one former Wisconsin bar president who’s advocated for a voluntary bar for decades even made headway based on compelled Free Speech grounds. But it was short-lived. His victory was reversed on appeal by the 7th Circuit.

To be clear, however, that guy in Nevada ain’t advocating removal of the mandatory bar yoke — that’s a furrow too far for most bar insiders. But at least he’s shooting straight on UPL and about what Nevada’s new legislation means. In his latest “Message from the President,” Lefebvre rails against “the commoditization of the practice” and how “the unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing.” See “President’s Message: Unauthorized Practice of Law: Redux …

Lefebvre’s so effusive he even signals out Lucy Flores, the bill’s author who he says, “should get a ‘lawyer of the year’ award for her foresight.”

Foresight — what a concept. But so’s candor and especially, courage.

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Photo Credits: “Whitby Sock One,” by LollyKnit at Flickr via Creative Commons-requiring attribution; 200px-Blnguyen_violin.jpg at Wikimedia Commons; Otis_fence.jpg at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”in other words, you have a big mouth,” by Vera at Flickr via Creative Commons-requiring attribution;”Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution.

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