Wednesday, March 4, 2015

An Arizona resident explains why HB2629 is necessary to make the State Bar voluntary

This letter was sent by an individual to state legislators, urging them to pass HB2629:

I own a home in the Biltmore area, pay Arizona property taxes, I have an Arizona car registration.  With Arizona family and friends who I see affected by HB 2629, I want to express my support of this bill.  Here are the reasons that, over time, I have come to realize that the best use of Arizona resources is to pass this bill: 

1.  Every citizen of the United States has a right to free speech in most areas, but Arizona lawyers currently don’t have free speech rights with the state bar.  Lawyers are prosecuted for publicly disagreeing with judicial decisions.  To prosecute a lawyer for that disagreement is to impair the lawyer’s ability to practice law, to generate new legal precedent and this impairs their ability to serve the public.  To prosecute a lawyer’s free speech rights therefore actually harms the public the Arizona State Bar insists that it wants to serve.  The State Bar’s message is to go out and serve the public, but only to an extent. 

2.  I have recently learned in my research that 19 Other jurisdictions in the Country have voluntary bars.  That is nearly one-half the nation's state bars.  The ones that are involuntary do not prosecute lawyers as harshly.  Arizona prosecutes more harshly and proactively than any other.  I see my Arizona attorney contacts obtaining more out of state education and certifications and currently, electing not to invest in the Arizona legal community to the extent they could.  This is not an unwise investment.  Arizona may be business friendly, but Arizona is NOT attorney business friendly.  There is a major difference between the two.  Arizona attorneys deserve the same business friendly climate that Arizona offers other non-lawyer businesspeople.  

3.  The State Bar of Arizona is out of sync with the way the lawyers of today practice.  A recent article shows Arizona lawyers are working in spaces of 600 square feet or less.  Lawyers looking for space, however, will not lease from the State Bar’s plentiful EMPTY office space (which they fund with dues) because no lawyer wants to rent space next to the State Bar.  That would be like Jaws' next meal taking up residence next to Jaws.  The State Bar occupies a building with high vacancy rates while lawyers in Arizona work with less physical space.  Also, many State Bar attorney investigators have never practiced privately as a solo practitioner or small to mid-size firm lawyer in a successful law practice before joining the State Bar.  They don’t know how to balance the ethical rules against the everyday practicalities of running your own business.   Worse, State Bar executives consistently report higher pay than most small firm and solo Arizona attorneysThis enormous salary difference makes the State Bar totally out of touch with the very Bar members it most consistently prosecutes and investigates.  (see:

4.  No man can serve two masters and the State Bar believes it is the one exception.  The Arizona State Bar wants to serve the public with a secondary purpose of serving the members it seeks prosecute.  Its programs offered to assist lawyers are not insulated and many people who have worked for their attorney assistance program left and started their own ventures. State Bar services - if offered - are going unused, much like any other unused public service program. 

5. Like with any other important legislation, if this is passed, it will require some adjustment.  It may “need some re-working” as one legislator mentioned - but then so did Obamacare.  We had to pass the Obamacare bill to find out “what it says,” based on Nancy Pelosi’s explanation. 

When slavery ended, schools were de-segregated, women began voting, or wage laws were passed, things did not fall into place overnight.  In fact, today, there are still billboards on the I-10 interstate in Arizona alerting people to the possibility of human trafficking and slavery.  This adjustment is worth the brief discomfort and possibly temporary uneven application because it protects the members of the public who protect everyone else.  When police, doctors and politicians get into trouble, they turn to the absolute privilege of confiding in a lawyer.  Lawyers perform an enormous service to the public, and like any office, can run into personal and professional conflicts.  Lawyers too merit a place to turn and that place is not offered by the State Bar.  

6.  If the purpose of the State Bar is to "weed out the bad apples," there are far more effective weeding methods.  There are very, very few lawyers - just as there are very few people serving in politics and law enforcement or education - who went into their service because they wanted to have a lot of power and really use it to hurt people.  People who go into these fields with a lack of conscience are possibly sociopathic, but it doesn’t take a State Bar to weed them out.  A personality test or evaluations by professionals with consent of the applicant that are administered with the Character and Fitness examination can more effectively preempt.  Many lawyers got into their business because we wanted to effect changes.  Lawyers want to make a positive difference.
I have seen John Phelps's memo to the Asian Arizona State Bar Association.  Here are my responses to his concerns:

"It would grow state government – We believe 60-65 positions would have to transfer from the bar to the court to create a lawyer regulation department. That doesn’t include the cost of IT, HR and management support, along with the expense of housing, furniture, computers and software licensing plus putting those employees in the state retirement system. We’re also not convinced that the state could do it cheaper than the bar. The cost would likely simply be passed along to attorneys in the form of a licensing fee, but why make regulating attorneys more expensive?" 
My response:  The public is being served by lawyer regulation, so public tax dollars can be used toward this regulation.  IT, HR and other support can call on Arizona local businesses, pumping more dollars into our local economy.  The employees may or may not have to be in the State Retirement system.  Whether the state can do it cheaper than the bar is beside the point.  There are over six million people in Arizona.  In 2013 there were 24.46 lawyers per 10,000 residents in Arizona, or a total of 16,208 attorneys.  At $500 each in bar dues each year, that is $8,104,000.  With 6,626,624 people in Arizona, that is a $1.22 increase in taxes to regulate all those attorneys.  Did John Phelps even do his math?

"It’s a solution in search of a problem – During the Judiciary Committee hearing, Rep. Farnsworth called the bar political and dominated by large law firms. Because of US Supreme Court rulings, the bar does not take a stand on political issues. Currently our board has 30 members, of which two are from large firms. In fact, we have far more small and solo attorneys on our board. Rep. Farnsworth didn’t detail what he believes are our political activities. The reality is that we’re a lot more boring than people think."
Rep. Farnsworth is correct.  If the Bar is so boring, then how is it using a revenue of over $8,104,000 per year?  Why are more than eight executives being paid more than $100,000.00 at the State Bar?  They must be doing something more than being boring to earn those salaries.

"Will it improve consumer protection? – We’re concerned that moving this function to the state will create budget constraints that will ultimately lead to diminished efforts to protect the public."
Consumer protection can be improved by less restrictive measures.  Those measures include increased testing for applicants.  Moving the function to the state, assessing a tax increase of a mere $5.00 per Arizona resident, could actually quadruple the resources currently available for attorney regulation.
But the question comes back:  Is this even necessary?  Are attorneys, the people who give absolute privilege, so inherently bad that they have to essentially build their own coffins by paying for their own discipline?  Don't many more than not actually go through extensive schooling and contribute even more extensively to the economy while building careers of creating new ways for people to live, resolve problems and do business? 

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