Rebutting the Arizona Bar President’s Latest Email Blast Misstatements.

Find below, Mr. Trachtenberg’s key points and the accompanying rebuttals.
A. THE SUPREME COURT SHALL LICENSE ATTORNEYS FOR THE PRACTICE OF LAW IN THIS STATE. THE SUPREME COURT SHALL ADOPT RULES TO CARRY OUT THE PROVISIONS OF THIS SECTION INCLUDING:
1. MINIMUM QUALIFICATIONS FOR LICENSURE.
2. TESTING REQUIREMENTS.
3. REQUIRING A BACKGROUND INVESTIGATION BEFORE OBTAINING A LICENSE.
4. DISCIPLINING ATTORNEYS.
5. DISBARRING ATTORNEYS.
B. AN ATTORNEY SHALL NOT BE REQUIRED TO BE A MEMBER OF ANY ORGANIZATION TO BECOME OR REMAIN A LICENSED ATTORNEY IN THIS STATE.
1. MINIMUM QUALIFICATIONS FOR LICENSURE.
2. TESTING REQUIREMENTS.
3. REQUIRING A BACKGROUND INVESTIGATION BEFORE OBTAINING A LICENSE.
4. DISCIPLINING ATTORNEYS.
5. DISBARRING ATTORNEYS.
B. AN ATTORNEY SHALL NOT BE REQUIRED TO BE A MEMBER OF ANY ORGANIZATION TO BECOME OR REMAIN A LICENSED ATTORNEY IN THIS STATE.

Nor is there language that “requires the Arizona Supreme Court to create an entirely new division to handle attorney discipline and assess Arizona attorneys for this expense.”

Besides, placing all the public protection functions directly under the active supervision of the Arizona Supreme Court merely finalizes what the Court has already virtually accomplished. In 2011, it removed most of the State Bar’s core public protection functions from the oversight of the lawyer-elected Board of Governors. Having stripped the core public-protection powers from the mandatory Bar’s Board of Governors, the Court currently runs them separately or through Bar professional staff as a regulatory-only agency free from Board of Governor control.
In Colorado, for example, the voluntary bar state similar in size to Arizona and upon which Arizona based its 2011 revamped lawyer discipline system, attorney regulation is administered by the Office of Attorney Regulation Counsel under appointment of the Colorado Supreme Court. A nine-member Attorney Regulation Committee is composed not by state employees but by lawyers and lay persons and an Office of the Presiding Disciplinary Judge to administer the procedures. No tax dollars are used to fund the attorney regulation process in Colorado.

What HB2221 additionally does is uphold lawyer First Amendment Freedoms; improve public transparency; assure no government growth at taxpayer expense; fight further bar bureaucratic bloat; affirm Arizona Supreme Court state constitutional authority over lawyer regulation; and transfer all lawyer regulation authority from the lawyer-controlled state bar to the Court to better protect the public. The State Bar of Arizona continues to exist as a professional association empowered only to collect voluntary non-regulatory dues from lawyers.
In sum, HB 2221:
1. Reaffirms lawyer regulation under the state supreme court;
2. Places all lawyer regulation assessments under supreme court control;
3. Limits bureaucratic expansion since the state bar is authorized to only collect voluntary membership dues for non-regulatory programs and services and requires the bar to file annual independently audited public accountings;
4. Subjects the bar to open records and public meeting laws if the supreme court delegates any of its regulatory authority to it.
1. Reaffirms lawyer regulation under the state supreme court;
2. Places all lawyer regulation assessments under supreme court control;
3. Limits bureaucratic expansion since the state bar is authorized to only collect voluntary membership dues for non-regulatory programs and services and requires the bar to file annual independently audited public accountings;
4. Subjects the bar to open records and public meeting laws if the supreme court delegates any of its regulatory authority to it.
The State Bar of Arizona can continue to offer programs and services on their merits. In Nebraska where nonregulatory activities are financed solely by revenues other than mandatory assessments, the Nebraska State Bar Association continues to offer programs and services and practice tools, including such benefits such as:

As for the separation of powers issue, the interplay between the coequal branches of state government has an interesting history. The Arizona Territory was formed in 1865 and the first statewide bar association was created in 1895 as a voluntary membership organization. It remained voluntary for the next 38 years. But thanks to the concerted lobbying of lawyers who in part sought legislative protection against unauthorized legal practice, the Arizona Legislature passed the State Bar Act in 1933. And for the next 52 years, the Arizona Legislature and Judiciary jointly exercised their respective state constitutional powers with respect to the regulation of the practice of law in Arizona. Under a sunset law provision, the State Bar Act terminated in 1985 along with statutory protections against the unauthorized practice of law.
As concerns harm to consumers, the truth as pointed out here is that the opposite is true. “To ensure that the regulation of the practice of law is done solely for the benefit of the public as a whole, and not for the benefit of lawyers, the State Bar should not be a mandatory association.”

So the inclusion of a hyperlink to “Working for a Better Bar – A Voluntary Bar” is not even a half-measure of fairness and equal time. And audaciously, while Mr. Trachtenberg characterizes “SaveTheBar” as a “divergent” viewpoint from its own, in actuality, that can scarcely be said. Notwithstanding its unsuccessful effort to inoculate itself from the accusation by proclaiming “this is not a cheerleading page for the Arizona State Bar,” that is precisely what SaveTheBar is. Visit the website yourself. It is tantamount to a proxy for the State Bar — even using some of the Bar’s own “efficient” and “effective” descriptors to gush about the Bar. Compare it to this website to see which is really “divergent.”
REBUTTAL: Inasmuch as House Concurrent Memorials 2002 and 2003 are not engrossed, i.e., in final version, I will defer a complete rebuttal here. Nevertheless, to be clear, the purposes of the resolutions are simple. Considering that to the extent provided by the Arizona Constitution, the regulatory functions relating to the practice of law, including the regulation of attorneys in this state, are within the authority of the Arizona Supreme Court, the House of Representatives of the State of Arizona, the Senate concurring, requests (1) That the Arizona Supreme Court modify its rules related to the State Bar of Arizona to ensure compliance with Keller and the protection of the First Amendment freedoms of Arizona attorneys; and (2) That the Arizona Supreme Court establish improved transparency measures with respect to the practices and policies of the State Bar of Arizona in spending member dues.
If you have a question or want more information, contact info@workingforabetterbar.org
– M.R. Hernandez, Esq.
Credits: A broker feigning deafness to avoid paying the doctor who cured him. Coloured etching, 1786, Wikimedia Commons, public domain; The Meeting, 1884, by Marie Bashkirtseff, Wikimedia Commons, public domain; Help your fuel watcher save fuel at work, by Clive Uptton, The National Archives (United Kingdom), catalogued under document record INF3/182, Wikimedia Commons, public domain; Mr. Seafall’s talk button, Wikimedia Commons, Creative Commons Share and Share Alike Attribution License.
No comments:
Post a Comment