Attorneys
who want to practice law in Arizona must pay the State Bar of Arizona
mandatory member dues. The State Bar of Arizona uses this money to
regulate the practice of law and to engage in other activities,
including lobbying and other political activity.
HB
2221 accomplishes two things. First, so long as the State Bar
regulates the practice of law, HB 2221 subjects the State Bar to
public records laws. Second, HB 2221 protects attorneys’ free
speech rights by requiring that mandatory dues be used only for
regulation. The bill allows the State Bar to continue to collect
voluntary dues to pay for its other operations.
HB
2221 respects the free speech rights of attorneys
The
Goldwater Institute opposes conditioning the practice of law on bar
membership because coerced membership violates the rights to free
speech and free association guaranteed by the United States and
Arizona Constitutions. HB 2221 limits the violation of the free
speech rights of attorneys by requiring the State Bar only use
mandatory dues for the direct regulation of the practice of law.
Limiting
attorneys’ forced funding of the State Bar only to regulatory
activities is not a radical proposition. 18 states—Arkansas,
Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas,
Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York,
Ohio, Pennsylvania, Tennessee, and Vermont—already regulate
attorneys without
compelling membership at all. These states demonstrate that violating
attorneys’ free speech rights is unnecessary to ensure the practice
of law is safely regulated.
HB
2221 increases transparency of the State Bar
While
the State Bar plays a large role in regulating the practice of law,
it is not subject to ordinary transparency measures such as public
records laws. HB 2221 addresses this problem by subjecting the State
Bar to the normal public records requirements all other regulatory
agencies in the State are subject to.
The
State Bar can already engage in lobbying on activities unrelated to
the regulation of the practice of law; HB 2221 does nothing to change
this
Under
Keller
v. State Bar of California,
496 U.S. 1 (1990), the State Bar cannot compel attorneys to fund the
Bar’s lobbying activities unrelated to regulating the practice of
law. But nothing in that case prevents the State Bar from collecting
voluntary funds from attorneys to engage in any political activity
that it wants. Just because the State Bar presently has a policy
that it will not engage in political activities beyond those
authorized in Keller,
there is nothing to stop the Bar from changing that policy tomorrow.
As a result, HB 2221 has no bearing on whether or not the State Bar
will expand the array of political activities it chooses to engage
in.
HB
2221 allows the Arizona Supreme Court to continue to delegate
regulatory functions to the State Bar
The
Arizona Supreme Court has interpreted the Arizona Constitution as
giving the Court authority to regulate of the practice of law,
including the power to determine who may practice law and under what
conditions. HB 2221 respects that interpretation. The bill allows the
State Bar to receive funds related to regulatory functions. HB 2221
does not, however, dismantle the State Bar, prevent the Supreme Court
from delegating regulatory functions to the State Bar, or require
attorneys to join the State Bar to further its regulatory functions.
If the Arizona Supreme Court would like to maintain the regulatory
structure as it presently stands, it can. All HB 2221 does is
increase the Bar’s transparency should it continue to function as a
regulator and prevent attorneys from being forced to fund the State
Bar’s activities beyond regulation.
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