Opinion—Arizona Supreme Court State Bar Mission and Governance Task Force

by Mauricio “Mo” Hernandez

Although the public comments period has closed, there is plenty to say about the final report of the State Bar Mission and Governance Task Force. But to cut to the chase, read the last exhibit, which is Task Force Member Attorney Paul Avelar’s letter. You may not agree with every part of his argument but it is nonetheless an incisive, clear-headed and well-articulated dissent. Unfortunately, it was relegated to the last exhibit of the Task Force Report.

His arguments can be boiled down to four key points, which are paraphrased below:

    1. Abolish the “integrated” State Bar so as to separate the regulatory and trade functions that the Arizona Supreme Court has already tried to separate in practice. This rids the trade association of its veneer of state sanction and support and protects lawyers’ First Amendment rights;

    2. Recognize the State Bar as purely a regulatory agency tasked solely with protecting the public, to oversee and implement the regulation of lawyers and the practice of law exclusively in keeping with effectuating that pure regulatory function;

    3. Abolish the State Bar governing board whether called the Board of Governors or the Board of Trustees and instead rely on professional staff to assist the state Supreme Court in regulating lawyers and the practice of law;

    4. In the alternative, should the Arizona Supreme Court deem a governing board necessary, the Court should appoint a small board that better represents the public, not lawyers. Lawyers should not have the power to elect and control their own regulators.

The Task Force’s own recommendations are largely inconsequential and cosmetic, such as reducing the size of the governing board; changing the board’s name from “governors” to “trustees;” and adding new qualifications, term limits and related procedures.

Nevertheless, there is much in the Task Force Report to which one may take exception, especially the conflated mythology again fluttered out on frayed wings that only a mandatory bar can “ensure professionalism and competence” and protect the public from lawyers. This, of course, ignores the robust lawyer regulation and disciplinary regimes in 18 voluntary state bar jurisdictions. It also overlooks and misconstrues the panoply of membership benefits provided by voluntary bar associations, like Iowa’s, Colorado’s, New York’s, and Illinois’ to name a few.

Indeed, many if not all of these voluntary bar association programs and benefits rival and even exceed the non-regulatory programs, activities and services provided by the compulsory State Bar of Arizona. See, for example, the following links to the voluntary bar associations mentioned above:

But for the sake of a long overdue clarification, there is one misapprehension that needs to be addressed. It concerns the following paragraphs of the task force report.

    “The most common complaint from attorneys about a mandatory bar is that they pay for services that may not benefit them individually or that they may not use.5 It is true that an Arizona attorney does not need to utilize any non-regulatory bar services; those services are optional. That is, attorneys can forego reading the monthly magazine or decline to attend SBA continuing legal education programs or the annual bar convention (although the foregoing services are self-supporting and do not require the expenditure of dues). But other services – such as the client protection fund, the member assistance and law office management programs, and the conservatorship program – require the financial support of every attorney to be effective. The duty to protect the public is not owed just by the attorneys who become disabled, who mismanage a law office, or who cheat a client. All attorneys bear a responsibility to protect the public. An integrated bar assures that every attorney – not just half or even ninety percent of attorneys, but every attorney – shares the cost of that responsibility. These invaluable services will cease to exist with the demise of the integrated bar because no voluntary bar in Arizona offers them.

    “Most states have integrated bars. A minority of states use other models, which Task Force members have discussed. Arizona has had an integrated bar for more than eighty years. Although like any institution the SBA can be improved, the Task Force believes the integrated model well serves the courts, attorneys, and people of Arizona. The Task Force therefore recommends that the SBA continue to be an integrated bar association.

    5 “States that have voluntary bar associations by and large do not have lower overall bar dues. They charge both a mandatory regulatory assessment and separate voluntary bar dues, which together often exceed the annual membership fee in the State Bar of Arizona. An integrated bar benefits from economies of scale (for example, in human resources, technology, office expenses, and rent) that might require duplication if there were separate regulatory and voluntary entities.”

    Report of the Task Force on the Review of the Role and Governance Structure of the State Bar of Arizona, September 1, 2015, page 9.

The facts are set out in the chart below. The details therein were sourced from readily-available fee information from voluntary state bar jurisdictions. The attorney registration fee information comes from state court websites although since the Arkansas Supreme Court fee registration information was not publicly-accessible, it was confirmed by a licensed Arkansas lawyer. In almost all instances, fees for both attorney registration and for membership in corresponding voluntary state bar associations are graduated. In other words, new lawyer admittees pay lower fees in most every instance. And at the other end of the spectrum, in some cases, long term practicing lawyers also pay discounted fees. The fees charted below, however, are the full fee maximums for lawyers practicing past the entry-level graduated fee periods.

In addition, with respect to “economies of scale,” the voluntary Colorado Bar Association (among others) has slightly more members than the mandatory State Bar of Arizona. Also, the 30,000 member voluntary Illinois State Bar Association, founded in 1877, is not only larger but much older than the State Bar of Arizona. Although the voluntary Indiana State Bar is slightly smaller than Arizona’s Bar, it nonetheless has sufficient economies of scale to allow it to offer an impressive list of member benefits.

And take note of something else not mentioned in the chart. While the breathtaking $945.00 combined regulatory assessment and separate voluntary bar dues appear to make Connecticut a high cost to practice jurisdiction, the overall cost to practice is still lower than in Arizona. Why? Because unlike Arizona, Connecticut does not have mandatory continuing legal education (MCLE). This saves Connecticut lawyers anywhere from $600 to $1000 per year versus what Arizona lawyers pay to satisfy the annual 15 hour MCLE requirement.

The same is true of Massachusetts with its sizeable $761.00 combined regulatory assessment and separate voluntary bar dues. Massachusetts does not have an MCLE requirement. Nor does Maryland, which at $280.00 for both regulatory assessment and voluntary bar dues must be the lowest cost to practice jurisdiction in the United States.

The bottom line is two-fold:

First, in voluntary bar states, lawyers can simply elect to pay only their court-mandated regulatory registration fees and forego joining a voluntary state bar association. This automatically reduces their overall cost to practice as compared to Arizona.

Second, the polar opposite of the foregoing Task Force statement is true. Lawyers in states that have voluntary bar associations pay lower overall bar dues, in some instances far less than the current and still escalating annual membership fee in the State Bar of Arizona.