Friday, March 6, 2015

Refuting myths: HB2629 to eliminate the mandatory State Bar does not violate the Arizona Constitution

Provided by an attorney who is very knowledgeable about the Bar, the Arizona Constitution and the Arizona Supreme Court. Provided anonymously out of fear of retaliation by the state bar. Please spread far and wide.

MYTH 1 The Arizona Supreme Court is granted power to license attorneys by the Arizona Constitution in Article VI §1, and HB2629 will take away this power, violating the Constitution.

RESPONSE The bill does not take away the State Supreme Court’s authority to license attorneys. Creating rules that expand that power are not unlimited and are not permitted to violate other constitutional rights. The rules created requiring bar membership are inconsistent with the Constitution that states no person shall be required to be a member of a labor organization.

MYTH 2 A mandatory bar association does not violate the right to work in
Article VI §1 of the Arizona Constitution.

RESPONSE Yes it does. The rules created requiring bar membership are inconsistent with the Constitution that states no person shall be required to be a member of a labor organization.

MYTH 3 HB2629 conflicts with Arizona Rules of the Supreme Court, Rule 31(b), which states in part that: “no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar.”

The background assumes that “under this authority” is unlimited. The authority to regulate the practice of law and the courts should not extend to matters that are unnecessary. For example, there are supreme court rules that legislate non attorney matters under the same authority as well as insulate bar staff from any liability. Rule 48 gives immunity to people even if they slander or falsify a bar complaint against an attorney. “Communications to the court, state bar, committee, presiding disciplinary judge, acting presiding disciplinary judge, hearing panel members, settlement officers, mediators, the client protection fund, the peer review committee, the fee arbitration program, the committee on the Rules of Professional Conduct, monitors of the Member Assistance or Law Office Management Assistance Programs, state bar staff relating to lawyer misconduct, lack of professionalism or disability, and testimony given in the proceedings shall be absolutely privileged conduct, and no civil action predicated thereon may be instituted against any complainant or witness. Members of the board, members of the committee, the presiding disciplinary judge, hearing panel members , the peer review committee, client protection fund trustees and staff, fee arbitration committee arbitrators and staff, the Committee on the Rules of Professional Conduct, monitors of the Member Assistance or Law Office Management Assistance Programs, state bar staff, and court staff shall be from suit for any conduct in the course of their official duties.”

The courts also use their power to adopt laws such as Rule 123. Access to the Judicial Records of the State of Arizona. (a) Authority and Scope of Rule. Pursuant to the administrative powers vested in the supreme court by Article VI, Section 3, of the Arizona Constitution, and the court's inherent power to administer and supervise court operations, this rule is adopted to govern public access to the records of all courts and administrative offices of the judicial department of the State of Arizona. The court has legislated various areas of public records.

MYTH 4 In Lathrop v. Donohue, 367 U.S. 820, 844-45 (1961), the U.S. Supreme Court held that attorneys can be required to join mandatory bar associations with fees.  

RESPONSE The Lathrop decision has been significantly watered down as bar associations have proven to act politically. Most importantly, Lathrop did not deal with a constitutional right to not join an organization. This decision 50 years ago has been altered and did not take into account the Right to Work constitutional amendment.
MYTH 5 HB2629 has no context outside a courtroom, so it is only a procedural law, which infringes on the authority of the State Supreme Court to regulate.

RESPONSE The bill has a very important context outside a courtroom - it deals with mandatory membership of all attorneys regardless of whether they ever step foot in a courtroom, are retired or are disabled. The bar membership finances services well beyond the oversight of the licensing requirements, including controversial lobbying and political activities that many attorneys fundamentally disagree with.

MYTH 6 If there is a conflicting rule already created by the Arizona Supreme Court, that rule will control.

RESPONSE This conclusion ignores when the rule is unconstitutional. If the Supreme Court decided only men could practice law, everyone would agree it is unenforceable.

The State Bar Association does not fit the description of a “labor organization” as provided in A.R.S. § 23-1301.A.R.S. § 23-1301 defines a labor organization as: “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment.” The Association does not deal with individual employers or bargain the conditions of attorney employment. Instead, it serves as the legal profession's regulatory agency. This is a different function from that of the employer-employee relationship to which the constitutional right-to-work provision and the statutory definition apply. 1987 Ariz. Op. Att'y Gen. 201 (1987)

RESPONSE The conclusion is false. No Arizona court has addressed the issue . The US Supreme Court in Keller v. State Bar of California certainly saw the similarities when it specifically did not address a challenge as not being properly before it on the idea that “they cannot be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified.”

CONCLUSION The State Bar is a labor organization and the Supreme Court does not have unlimited rule making power to circumvent the Right to Work constitutional protections.


1 comment:

lainelawless said...

This is an excellent comparison of both positions. OF COURSE the Bar is fighting to stay in business! Think of all the unnecessary people who work there who might lose their jobs! Oh, so sad and too bad.