Arguments for Keeping an Integrated State Bar

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The State Bar is Not a Labor Union

The State Bar of Arizona is not a labor union. It does not represent its members in collective bargaining for wages, benefits or working conditions. It does not represent members in labor disputes. Arizona’s Right to Work law is very specific about what qualifies as a labor organization. ARS §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”. Arizona’s right to work statute, §23-1302 refers to a “labor organization”. The State Bar does not fall into this category.

Lobbying Activities Are Limited

The State Bar’s lobbying efforts are strictly controlled by a US Supreme Court decision, Keller v. State Bar of California. That ruling states member dues may not be used to advocate on issues that are not related to the core purpose of the bar or the administration of justice. While the court allows for mandatory organizations like the bar to continue that advocacy, it would be required to refund the portion of dues spent on that effort.

The State Bar of Arizona, however, chooses to take Keller-pure position. The bar does not lobby or advocate on issues that would not pass a Keller test. The Bar does not take positions on bills that have nothing to do with the practice of law.

In states where the Bar is voluntary, it is typical that at least 60% of practicing attorneys join, and those organizations are very active politically—they take positions on all manner of social issues and in many cases raise funds and support campaigns for candidates.  That simply does not happen in Arizona—the Bar focuses on protecting the public by enhancing the profession, not politics.

The State Bar Enhances the Legal Profession and Serves the Public

Being a lawyer is not simply a job.  Every lawyer, when sworn in takes an oath as an “officer of the court.”  As officers of the court, every lawyer has an obligation to the client, but also to the public.  An attorney takes this oath knowing that membership in the Bar and the ability to serve the profession and the public comes with it. Membership in the Bar necessarily engages every lawyer in fulfilling this oath.  In Arizona, lawyers cannot opt out of this obligation.  Those who choose to practice law do so with full knowledge of these responsibilities.

Regulatory Activities Highly Effective for Public

The mandatory bar is the key component of a self regulating profession. While many other associations may attempt to create ethical and service standards, only the legal profession has a code of conduct that is enforced with all attorneys.

The regulatory arm of the State Bar is highly effective. In 2013 it received 3.492 inquiries and complaints. After initial fact finding, 792 moved into formal investigation. The results:

  • 25 attorneys disbarred
  • 28 attorneys suspended
  • 26 attorneys censured
  • 48 Informal Sanctions
  • 88 Diversion orders/agreements
  • 209 Instructional comments

No other state regulatory agency can compare to this level of scrutiny. While some might argue it is excessive, it is important to point out that attorneys are officers of the court and must answer to a higher standard. How does the number of sanctions compare with other state consumer agencies?

Arizona consumers have an active part in lawyer regulation. Members of the public are involved in both the probable cause phase (similar to a grand jury) as well as the hearing phase. Three of the nine probable cause members are public volunteers. One person on the three member disciplinary panel that hears cases is a volunteer who is not an attorney.

Statewide Continuing Legal Education

In addition to the regulatory function, the State Bar offers continuing legal education, required by the court in order to maintain the ability to practice law. While this is available for other organizations as well, the State Bar is in the unique position of being able to see potential discipline trends as they develop and quickly adapt its legal education courses to meet any potential need. The State Bar can offer a wide variety of continuing education courses with the goal of serving the entire profession.

Important Role on Providing Balanced Comments on Rules and Legislation

The State Bar’s role is to serve the public, and to enhance the legal profession. Advocacy before, and education of, state and local governmental bodies requires the inclusion of all members of the profession. Arizona’s bar has a comprehensive and in‐depth structure and procedure for drafting, evaluating and modifying proposed legislation at both levels. The Bar’s most recent bills have passed the legislature on either unanimous or nearly unanimous votes. In the last session the Bar brought the Arizona Entity Restructuring Act which was proposed by attorneys in the Bar’s Business Law section. It passed the legislature and was signed by Governor Brewer.

The State Bar is also actively involved in drafting and commenting on new court rules. Through its system of member sections it has the ability to reach attorneys working in various aspects of the law to ensure that new rules not only accomplish the task, but don’t cause larger problems. By having all lawyers be members of the bar, the rule drafting and comment process can take into account all views not just one side (e.g. defense vs. prosecution). Before any rule proposal takes effect, the public and any concerned parties have the opportunity to give comment.

Helps Consumers

The State Bar helps consumers by ensuring that attorneys run their businesses in an efficient manner. The Law Office Management Assistance Program (LOMAP) can provide guidance for attorneys who are, in fact, operating small businesses. LOMAP is also available for attorneys facing discipline not for their lack of legal skill, but simply their ability to run a business. The state bar also provides online access to lawyer discipline records.

Special Assistance Provided to Lawyers Statewide

The State Bar’s Member Assistance Program provides completely confidential assistance for lawyers, judges and their families who have concerns with alcohol or substance abuse, mental health issues, other addictions or stress provided free through a Peer Support Network of volunteers.  The Member Assistance Program offers additional information and resources on its website for members and their families seeking treatment and support.

Not Public Employees

State Bar employees are not public employees, they are not on the state payroll. State Bar employees are not members of a state retirement plan. Moving the regulatory function to the court will grow state government.

Conservative Finances

The State Bar is an efficient manager of its finances. When dollars are adjusted for CPI, the Bar spends less per member today than it did in 2005. A recent study by a graduate student at the Thunderbird School of Global Management stated, “Through various tests, the State Bar of Arizona can be considered an efficient organization.” After comparing the State Bar of Arizona to both other regulatory bars and state consumer agencies, it concluded, “The AZ Bar economically and successfully handled its regulatory function in comparison to its peers.”

Privatization

Making lawyer discipline a function of the Supreme Court would fly in the face of Arizona’s effort to privatize. A portion of Arizona prisons have been privatized since 1993. Gov. Brewer signed Senate Bill 1045 into law in May 2010, which set in motion the privatization of SCF Arizona. Gov. Brewer also signed Executive Order 2010-12, which privatized the state’s Department of Commerce, replacing it with the public-private Arizona Commerce Authority (ACA).

Court Governance Task Force

The Supreme Court is currently reviewing the governing structure of the Bar. This is not as a result of a particular complaint or problem, but rather an effort to ensure that the Bar is properly focused and effectively governed. The task force is currently reviewing topics ranging from the size and makeup of the board to wording of Rule 32 that establishes the reasons for the Bar’s existence.

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