Friday, November 6, 2015

SBA BAR MONITOR November 5, 2015 - Rebutting the One-sided Message from the State Bar President on Eliminating the Mandatory Bar

Dear Colleagues:

This week you received a blast email from the State Bar of Arizona (SBA) President. And as one colleague replied: "The Bar’s approach to the current dispute is not simply about improving the practice of law or helping the public, although Bar leaders may sincerely hold that opinion. It is advocating an institutional self-serving position in what has become a political and ideological dispute. Let’s take the high road and give the pro-voluntary folks a fair shot to make their case."

Unfortunately, the SBA has so far been unwilling to let the other side be heard on a fair and equal footing. With all its advantages, it keeps presenting a one-sided misleading message. Here at least is one rebuttal.

A non-authorized independent advisory periodically informing members about proposed State Bar of Arizona plans, programs and rule amendments that impact them and their practices.
November 5, 2015 Report

Rebutting the Message from the State Bar of Arizona (SBA) President

Fellow Members of the Bar:

"Your Bar and, more broadly, your professional independence are under attack by factions that would allow the Legislature to regulate the practice of law in Arizona. Much of this debate centers around eliminating the "integrated bar" in Arizona and is premised upon what I believe are false or misleading claims that promise a future of lower costs, greater efficiency, and more benefits. These claims are not accurate. Worse still, the proponents are threatening to upend and politicize the practice of law in Arizona."

Response: The SBA President is correct. This issue concerns "your professional independence." Currently, you don't have any. No other Arizona profession -- except for lawyers -- requires membership in any organization to practice. Under the current mandatory bar membership structure, you do not have freedom of choice. Indeed, under a line of cases, most recently, Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2289 (2012), the SBA's mandatory dues are a form of compelled speech and association that impinges on the First Amendment. If standing up for lawyers' First Amendment rights by opposing bar membership as a precondition to practice law means being part of a faction, so be it.

House Bill 2629  introduced last session had no provision "that would allow the Legislature to regulate the practice of law in Arizona." Instead, it reaffirmed lawyer regulation under the state supreme court. The Bill also stated, "An attorney shall not be required to be a member of any organization to become or remain a licensed attorney in this state."

As for lower costs to practice: lawyer regulation fees paid to the respective state supreme courts average $210 in the 18 voluntary bar jurisdictions that regulate lawyers without conditioning the practice of law on bar association membership.

In sum, the "false or misleading claims" are being made by self-interested stakeholders. And by controlling the means and access to communicate with all members, they're ensuring you only hear their side of this debate.  Ask yourself: For what reason?

Not to mention that those instruments of communication have been bought and paid for by all members.

"In terms of efficiency, the Bar is as lean and efficient as ever. Not only has the Bar cut its budget and staff size in recent years, but did you know that, as of 2011, the vast majority of consumer complaints to the Bar are handled by a simple telephone call? This allows staff to spend greater time on more serious charges. You will not find a more efficient self-regulatory agency than the State Bar of Arizona and other states borrow from us to improve their organizations."

Response: Just two years ago, the current SBA President joined 10 other governors to vote against a 13% dues increase, then deemed unjustified given the Bar's cost inefficiencies; unreliable fiscal discipline; and a projected $4.1M surplus. The increase was rammed through just the same, along with a 33% increase in membership fees; MCLE late compliance fees; and MCLE late filing fees. In-house counsel fees went up by $55 and pro hac vice fees also went up. And though the state bar says it cut expenses last year by $300,000, or 2% of a $15M budget, when the dues increase is fully implemented, incremental bar revenues will top $1.09M.

As for lawyer discipline: when it comes to borrowing from other states, the SBA followed Colorado when it revamped its disciplinary system in 2010 on Colorado's purported "best in class" lawyer disciplinary regime. Arizona, however, did not completely adopt the Colorado model. It made the significant exception of not completely separating its regulatory and trade association functions. That said, the state supreme court has already stripped away most of the public protection functions from the integrated state bar and placed them under professional staff that ultimately reports to the court. What are left are mostly discretionary trade association functions.  

"As far as member benefits, I've learned that our Bar provides many free or subsidized, low-cost benefits that I'd never noticed. The following is just a partial list. How many are you aware of?"

Response: The long list of SBA programs and services is very much like the long list of programs and services offered by state bar associations in the 18 voluntary bar jurisdictions. The SBA likes to mislead its members by conflating the existence of a mandatory bar with the availability of their programs and services.

If lawyers in the 18 voluntary jurisdictions want to take advantage of their voluntary bar association's programs and services, they do so by choice, not compulsion. Consequently, the voluntary bar associations in those states take a free-market approach. They incentivize membership by creating a value proposition of programs and services lawyers want and are therefore willing to pay for.

"And then there is our Bar's service to the public, which enhances the practice of law and the image of lawyers in Arizona. Last year our Bar's efforts to improve access to justice helped . . . . This month's President's message in Arizona Attorney magazine was a reminder: You don't know what you've got until it's gone. The reality is that if our Bar is broken apart, some of these services will disappear and you will spend more money to get some of the same services that you receive today. This means young, struggling attorneys might not have access to benefits like the ethics hotline or the trust account resources. But for all of us, this also means the practice of law, professionalism, and access to justice will likely suffer in Arizona."

Response: The reality isn't speculative. It is evident in the many years history of 18 voluntary bar states. Some of these voluntary state bar associations are among the oldest state bars in the nation. They enjoy robust memberships. They offer a diverse panoply of programs and services members want and are happy to pay for. They, too, offer programs that enhance the practice of law and the image of lawyers. They also promote access to justice.

For example, see the Tennessee Bar's Access to Justice page:

And the New York State Bar's "Law, Youth and Citizenship Program" at:

And the full-fledged pro bono legal services initiatives started in 1966 by the Ohio State Bar at:

And the Iowa Bar's young lawyer mentoring program:

Or see the Maryland Bar's fee dispute resolution services:

And see the Minnesota Bar's government relations initiatives, free of Keller restrictions, which provides "the collective, persuasive voice of the legal profession at the Capitol."

"Our Bar's mission is to improve the profession and serve the public. While there is always room for improvement, changes being discussed at the Legislature will create chaos with no discernible benefit."

Response: The Bar wants to serve as both regulator and trade association. This is an inherent conflict of interest. It cannot serve both the public and lawyers. The "discernible benefit" we need is improved public protection by eliminating the trade association function from an organization that regulates its own industry. The "discernible benefit" we need is enhanced professional independence for lawyers. The "discernible benefit" we need is protected lawyer First Amendment rights. The "discernible benefit" we need is a voluntary professional association free of conflicts of interest. The "discernible benefit" we need is a SBA with the free-market opportunity to sell membership on the merits not by coercion. The "discernible benefit" we need is the same option lawyers have in 18 voluntary bar jurisdictions, which is the option to pay only the costs of lawyer regulation that protects the public.

"All I ask of you is that you become informed on this important matter, look carefully at the people on both sides and consider their biases and motives, and let your state representatives and senator know how you feel."

Response: Amen.

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