Having suffered a near-loss at the Arizona Legislature this term, the State Bar of Arizona now says it plans to inoculate itself from “hostile legislation” — by working to “be even more open and transparent.”
But the extent of that effort remains uncertain since the State Bar already thinks its “very open and transparent.” Talk about a failure to diagnose. How can you fix a problem if you can’t admit you have one?
Just the same, that’s what State Bar of Arizona Chief Communications Officer Rick DeBruhl told Arizona Capitol Times Reporter Gary Grado in a May 13, 2016 puff piece ‘Q & A’ interview, “Rick DeBruhl: From State Bar advocate to pit row reporter.” (pay wall to read).
Grado’s interview juxtaposed DeBruhl’s May lobbying against bar reform legislature with his side job covering car races, most notably this month’s Indianapolis 500. The weekly newspaper, which immodestly calls itself “the leading source of political news from the state Capitol and beyond,” gave readers DeBruhl’s thumbnail background as a former local TV reporter, car buff and now State Bar flack and registered lobbyist.
It then interviewed him about his work at the Arizona Legislature where in response to the question, “How much of your time at the State Bar is dedicated to politics?” he answered, “I’m going to say 25 percent.” Or said another way, this is how much time DeBruhl says he spends lobbying. He tried to knock down the widespread belief that “people think I spend all my time on these bills, but I don’t, it’s only one part of what we do at the Bar.”
Be that as it may, it’s apparent he does do a good job of supplying reporters with the Bar’s talking points since Grado’s interview again unfortunately mischaracterized recent legislative State Bar reform efforts as “designed to gut the State Bar of Arizona.” So much for objective reporting.
In truth, none of the state bar bills dismantled or destroyed the state bar. In the case of HB 2219, it tried to make membership voluntary. In the case of HB 2221, the bill separated assessments paid by lawyers into mandatory regulatory and voluntary non-regulatory. In both instances, lawyer regulation and discipline remained under the authority of the Arizona Supreme Court.
In the interview, it’s now clear the State Bar thinks proposing to place itself under state supreme court open records rules will immunize it from non-transparency criticism and from more reform legislation. The irony is that the State Bar has already been under the court’s watch all the time it’s been manifesting its longtime track record of opacity and non-transparency.
DeBruhl habitually refers to the Bar as a “consumer protection organization.” But at the same time, the Bar refuses to be treated like every other state regulator that functions to serve and protect the public by ensuring that competency and disciplinary standards are met.
In fairness, DeBruhl is not an attorney. And so the arguments may redound as so much ‘inside baseball’ minutiae when it comes to comprehending why a mandatory bar’s First Amendment problems aren’t just about political matters — such as when the Bar defends merit selection. And parenthetically, DeBruhl provides no corroboration while nonetheless minimizing those who object to the Bar’s position on merit selection as the grievances of “a very small percentage of members.”
But it’s much more fundamental than a disagreement over a single political or ideological stance. It’s about safeguarding the constitutional rights of Arizona lawyer against compelled speech and association. These rights are infringed on when Arizona lawyers are required to join and fund the State Bar of Arizona in order to practice law.
But the constitutional infringement is also exacerbated when the “remarkable boon” of coerced membership is abused by the State Bar’s failure to obtain affirmative member consent to fund its expenditures not germane to regulating the practice of law. The State Bar, then, ought not only be focused on political or ideological positions members disagree with. It must also be concerned with not expending members’ mandatory assessments without members’ consent on activities that have nothing to do with regulating the practice of law.
So until the Bar admits it has transparency problems and constitutionally deficient consent procedures concerning its non-germane expenditures, it will remain outside the arc of evolving U.S. Supreme Court First Amendment jurisprudence. More importantly, the clarion call of reform will continue to be heard at the Arizona Legislature.