The Goldwater Institute has submitted a letter to the Arizona Supreme Court addressing recommendations made by the Supreme Court’s task force on the State Bar’s role and governance. The letter, which was obtained and made available by attorney Mauricio Hernandez, asks the Supreme Court to reject the task force’s recommendation that the State Bar remain integrated or mandatory. An integrated bar requires all attorneys to be members in order to be able to practice law in the respective jurisdiction. The Goldwater Institute contends that mandatory bar associations violate lawyers’ First Amendment rights of free speech and free association. Eighteen other states protect the public by regulating lawyers and the practice of law without the need for a mandatory bar. Therefore, a mandatory bar is not the only way to achieve lawyer regulation that protects the public.
Since the use of a mandatory bar to achieve lawyer regulation impinges on First Amendment rights, its use is subject to a heightened level of review known as strict scrutiny. The Goldwater Institute contends that the use of a mandatory bar association to achieve lawyer regulation in Arizona fails to meet the strict scrutiny test, so it is unconstitutional. Therefore, the Institute states, “[W]e urge the Supreme Court to no longer precondition the practice of law on bar membership in Arizona.” The full letter with its constitutional arguments is set forth below.