The fight resumes for lawyer regulation reform in Arizona.

The fight to reform lawyer regulation in Arizona resumes. HB2300 and HB2295 were introduced last Friday by Rep. Anthony Kern.

HB2300 is the pure voluntary bar bill. It establishes that lawyers are not required to be a member of any organization to become or remain a licensed lawyer in Arizona.

HB2295 bifurcates or de-couples the State Bar of Arizona into two subsets. One preserves the mandatory membership character to function as a regulatory public protection quasi-agency. The other subset becomes an optional, voluntary organization engaged solely in non-regulatory trade association activities. It also mandates open meetings and public records transparency when the Bar accepts any mandatory assessment monies.

HB2295 additionally acts to resolve the continued impingement of lawyers’ constitutional rights that takes place when membership in a trade association is a precondition to earn a living in their chosen profession. The bill also remedies the State Bar of Arizona’s inherent conflict of interest because it separates the Bar’s current role as both a regulator of and a trade association for lawyers.

The text of both bills follows:

HB2300

AN ACT AMENDING TITLE 12, CHAPTER 1, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING SECTION 12-119.06; RELATING TO THE SUPREME COURT.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 12, chapter 1, article 1, Arizona Revised Statutes, is amended by adding section 12-119.06, to read:

12-119.06. Regulation of attorneys; mandatory assessments; uses

A. TO THE EXTENT PROVIDED BY THE ARIZONA CONSTITUTION, ALL REGULATORY FUNCTIONS RELATING TO THE PRACTICE OF LAW IN THIS STATE ARE WITHIN THE AUTHORITY OF THE SUPREME COURT. ALL REGULATORY FUNCTIONS THAT ARE ADMINISTERED BY THE STATE BAR ON THE EFFECTIVE DATE OF THIS SECTION, INCLUDING ALL PUBLIC PROTECTION FUNCTIONS, ARE TRANSFERRED TO AND PLACED EXCLUSIVELY IN THE SUPREME COURT.

B. THE SUPREME COURT SHALL ACTIVELY SUPERVISE ATTORNEYS TO REGULATE THE PRACTICE OF LAW AND MAY COLLECT A MANDATORY ASSESSMENT FROM EACH ATTORNEY, AS A CONDITION OF PRACTICING LAW IN THIS STATE, TO SUPPORT THE COURT’S REGULATORY FUNCTIONS. THE SUPREME COURT MAY USE MANDATORY ASSESSMENT MONIES ONLY FOR THE FOLLOWING REGULATORY FUNCTIONS FOR ATTORNEYS WHO ARE UNDER THE ACTIVE SUPERVISION OF THE SUPREME COURT:

  1. ADMITTING AN ATTORNEY TO THE PRACTICE OF LAW.
  2. MAINTAINING ATTORNEY RECORDS.
  3. ENFORCING THE ETHICAL RULES THAT GOVERN ATTORNEYS.
  4. REGULATING ANY CONTINUING LEGAL EDUCATION MANDATES FOR ATTORNEYS.
  5. MAINTAINING ATTORNEY TRUST ACCOUNT RECORDS.
  6. PREVENTING THE UNAUTHORIZED PRACTICE OF LAW.
  7. MAINTAINING A CLIENT PROTECTION FUND, A BOARD OF LEGAL SPECIALIZATION AND THE APPOINTMENT OF CONSERVATORSHIPS TO PROTECT CLIENT INTERESTS.

C. THE SUPREME COURT SHALL INCORPORATE ANY MANDATORY ASSESSMENT MONIES COLLECTED INTO ITS BUDGET.

D. AN ATTORNEY SHALL NOT BE REQUIRED TO BE A MEMBER OF ANY ORGANIZATION TO BECOME OR REMAIN A LICENSED ATTORNEY IN THIS STATE.

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HB2295

AN ACT AMENDING TITLE 12, CHAPTER 1, ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING SECTION 12-119.06; RELATING TO THE SUPREME COURT.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 12, chapter 1, article 1, Arizona Revised Statutes, is amended by adding section 12-119.06, to read:

12-119.06. Regulation of attorneys; mandatory assessments; voluntary membership dues; uses; records; definition

A. TO THE EXTENT PROVIDED BY THE ARIZONA CONSTITUTION, ALL REGULATORY FUNCTIONS RELATING TO THE PRACTICE OF LAW, INCLUDING THE REGULATION OF ATTORNEYS IN THIS STATE, ARE WITHIN THE AUTHORITY OF THE SUPREME COURT.

B. THE SUPREME COURT MAY COLLECT A MANDATORY ASSESSMENT FROM EACH ATTORNEY, AS A CONDITION OF PRACTICING LAW IN THIS STATE, TO SUPPORT THE COURT’S REGULATORY FUNCTIONS. THE SUPREME COURT MAY USE MANDATORY ASSESSMENT MONIES ONLY FOR THE FOLLOWING REGULATORY FUNCTIONS FOR ATTORNEYS WHO ARE UNDER THE ACTIVE SUPERVISION OF THE SUPREME COURT:

  1. ADMITTING AN ATTORNEY TO THE PRACTICE OF LAW.
  2. MAINTAINING ATTORNEY RECORDS.
  3. ENFORCING THE ETHICAL RULES THAT GOVERN ATTORNEYS.
  4. REGULATING ANY CONTINUING LEGAL EDUCATION MANDATES FOR ATTORNEYS.
  5. MAINTAINING ATTORNEY TRUST ACCOUNT RECORDS.
  6. PREVENTING THE UNAUTHORIZED PRACTICE OF LAW.

C. THE STATE BAR OF ARIZONA MAY ESTABLISH, COLLECT AND USE VOLUNTARY MEMBERSHIP DUES FROM AN ATTORNEY FOR ANY LAWFUL ACTIVITY THAT IS NOT INCLUDED IN SUBSECTION B OF THIS SECTION.

D. THE COLLECTION OF MANDATORY ASSESSMENTS MUST BE SEPARATE FROM THE COLLECTION OF ANY VOLUNTARY MEMBERSHIP DUES. THE SUPREME COURT SHALL INCORPORATE ANY MANDATORY ASSESSMENT MONIES COLLECTED INTO ITS BUDGET. ANY OTHER ENTITY IN THIS STATE MAY NOT COLLECT A MANDATORY ASSESSMENT FROM AN ATTORNEY.

E. IF THE STATE BAR OF ARIZONA ACCEPTS ANY MANDATORY ASSESSMENT MONIES COLLECTED BY THE SUPREME COURT TO CARRY OUT A REGULATORY FUNCTION LISTED IN SUBSECTION B OF THIS SECTION, THE STATE BAR OF ARIZONA, ON OR BEFORE DECEMBER 31 OF EACH YEAR THAT MANDATORY ASSESSMENT MONIES ARE ACCEPTED, SHALL MAKE AVAILABLE TO THE PUBLIC A LIST OF ALL OF THE EXPENDITURES THAT WERE MADE WITH THE MANDATORY ASSESSMENT MONIES AND PROVIDE FOR AN INDEPENDENT AUDIT OF THE EXPENDITURES TO ENSURE THAT ALL EXPENDITURES WERE IN FURTHERANCE OF THE REGULATORY FUNCTIONS LISTED IN SUBSECTION B OF THIS SECTION. ANY PERSON MAY REQUEST TO EXAMINE OR BE FURNISHED COPIES, PRINTOUTS OR PHOTOGRAPHS OF ANY RECORD DURING REGULAR OFFICE HOURS OR MAY REQUEST THAT THE STATE BAR OF ARIZONA MAIL TO THE PERSON A COPY OF ANY RECORD NOT OTHERWISE AVAILABLE ON THE STATE BAR’S WEBSITE. THE STATE BAR OF ARIZONA MAY REQUIRE ANY PERSON REQUESTING A COPY OF ANY RECORD TO PAY IN ADVANCE FOR ANY COPYING AND POSTAGE CHARGES. THE STATE BAR OF ARIZONA SHALL PROMPTLY FURNISH, AND MAY CHARGE A FEE FOR, THE COPIES, PRINTOUTS OR PHOTOGRAPHS. IF REQUESTED, THE STATE BAR OF ARIZONA SHALL FURNISH AN INDEX OF RECORDS OR CATEGORIES OF RECORDS THAT HAVE BEEN WITHHELD AND THE REASONS THE RECORDS OR CATEGORIES OF RECORDS HAVE BEEN WITHHELD FROM THE REQUESTING PERSON. THE STATE BAR OF ARIZONA MAY NOT INCLUDE IN THE INDEX INFORMATION THAT IS EXPRESSLY PRIVILEGED OR CONFIDENTIAL BY LAW. ANY PERSON WHO HAS REQUESTED TO EXAMINE OR COPY RECORDS PURSUANT TO THIS SUBSECTION AND WHO HAS BEEN DENIED ACCESS TO OR THE RIGHT TO EXAMINE OR COPY SUCH RECORDS MAY APPEAL THE DENIAL THROUGH A SPECIAL ACTION IN THE SUPERIOR COURT PURSUANT TO THE RULES OF PROCEDURE FOR SPECIAL ACTIONS AGAINST A PUBLIC BODY. THE COURT MAY AWARD ATTORNEY FEES AND OTHER LEGAL COSTS THAT ARE REASONABLY INCURRED IN ANY ACTION UNDER THIS SUBSECTION IF THE PERSON SEEKING RECORDS SUBSTANTIALLY PREVAILS. THIS SUBSECTION DOES NOT LIMIT THE RIGHTS OF ANY PARTY TO RECOVER ATTORNEY FEES, EXPENSES AND DOUBLE DAMAGES PURSUANT TO SECTION 12-349. A PERSON WHO IS WRONGFULLY DENIED ACCESS TO RECORDS PURSUANT TO THIS SUBSECTION HAS A CAUSE OF ACTION AGAINST THE STATE BAR OF ARIZONA FOR ANY DAMAGES RESULTING FROM THE DENIAL.

F. FOR THE PURPOSES OF THIS SECTION, “RECORD” MEANS ANY RECORD OR OTHER MATTER IN THE CUSTODY OF THE STATE BAR OF ARIZONA RELATED TO MANDATORY ASSESSMENT MONIES THAT ARE COLLECTED BY THE SUPREME COURT AND THAT ARE ACCEPTED BY THE STATE BAR OF ARIZONA.

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