Thursday, March 5, 2015

An attorney explains why we need HB2629 to eliminate the mandatory State Bar association

The attorney who wrote this up is unnamed, in order to avoid retaliation by the State Bar, which is going all out to try and defeat this necessary legislation. Please spread this far and wide so the public is educated.

(1) This important legislation affirms the state constitutional powers of the supreme court with respect to regulating the practice of law in Arizona but equally importantly, frees Arizona lawyers from coerced membership in a draconian state bar association.

(2) Nineteen jurisdictions across the U.S. have voluntary bars including: Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Vermont. By separating the respective roles and responsibilities, the state supreme courts in those jurisdictions handle licensing, regulating and disciplining while the voluntary bars serve member interests through optional programs, services and activities.

(3) The Bill conclusively resolves the implicit conflict of interest and the irreconcilable tension between the mandatory bar in Arizona whose purpose is "to protect and serve the public" with that of a professional association whose purpose is to serve its members.

(4) The Arizona Legislature still has an important role to play with respect to matters of statewide concern, including general lawyer regulation, a fact traceable to the original incorporation of the Arizona Bar in 1933 through the Arizona Legislature. Indeed, for more than 50 years in Arizona, the state bar and supreme court were jointly empowered to regulate legal practice in the state. And not long ago, as one example, the Arizona Legislature enacted A.R.S. 12-2701, which codified the unauthorized practice of immigration and nationality law and established penalties for violations. See

(5) And above all else, this Bill is about protecting individual First Amendment freedoms violated by compelled association and by member subsidies of compelled speech. Members of the Arizona Legislature take an oath to uphold the Constitution and mandatory bar membership violates the First Amendment. And so more than simply a separation of powers issue, legislators should come down on the side of individual rights versus institutional ones. Indeed, under recent U.S. Supreme Court case law, mandatory membership associations are permissible -- but only when there is a compelling state interest involved and when the regulatory purposes are achieved by the least restrictive means. The fact that 19 states have voluntary bars and that each of those jurisdictions have robust regulatory schemes involving their lawyers means that this is achievable without the necessity of a mandatory bar association. (The U.S. Supreme Court case is Knox v. SEIU No. 10–112, 567 U.S. 310 (2012), citing Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) "mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” )

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