On Wednesday, January 24, 2018, the Arizona House Judiciary and Public Safety Committee by a vote of 6-3 passed House Bill 2119. The Bill separates the Arizona Bar’s regulatory functions from its trade association functions.
Those voting in favor: Representatives Boyer, Finchem, Stringer, Syms, Kern and Farnsworth.
Those voting against: Representatives Engel, Gonzales and Hernandez
HB 2119 next goes before the House Rules Committee before eventually a vote on the floor of the Arizona House.
85 years ago the Arizona Legislature constitutionally created the State Bar of Arizona. For over 50 years, the legislature shared Bar oversight with the state supreme court.
The Bar was supposedly conceived to serve the interests of the public and its members. In fact, the driving force behind its creation was lawyers wanting statutory protection to keep non–lawyers from providing legal services.
The Bar has always struggled with its dual mission — regulator protecting the public — and trade association serving its members. It’s a classic conflict of interest. And the Bar can’t reconcile it. When the Bar feels pressure from its own members or the legislature, it makes feints at reform. But in the end, it always chooses to stay the same.
In 2014, the court created a 16 member task force to look at bar mission and governance. But 10 of the 16 members were past bar presidents; former board members; a bar executive; even a bar lobbyist. They decided the status quo was OK.
Last year, the Goldwater Institute filed a court rule petition to separate the Bar’s regulatory and trade association functions. It was rejected without comment.
Also last year, responding to legislative pressure, the Bar wrote its own — open meeting and public records rules. There was no public input. No surprise — these fell far short of Arizona Public Records Laws — in transparency and right of appeal.
This month, a membership requirements survey was sent to 24,000 lawyers. It contained a bizarre proposal to allow lawyers to opt out of Bar membership. But to save a dubiously estimated $70 to $100 dollars, the proposal required lawyers to personally swear in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to bar membership. The proposal canceled bar numbers. It issued new bar cards. It charged higher fees for continuing education. It even required those opting out to tell their clients they were NMAs – non-member attorneys. All this because lawyers chose not to belong to what should be a voluntary trade association. With so many poison pills creating a lawyer second class — it was obvious the real intent was not to assess how many lawyers might opt-out — but to intimidate lawyers from doing so.
One thing is clear from these missteps: the State Bar is incapable of self-examination, let alone fixing itself. But other states have faced up to this problem. In 2013 the Nebraska Supreme Court separated the Bar’s regulatory functions from its trade association role. Last year, California’s legislature separated the bar’s functions to focus exclusively on public protection. The bill passed all committees and both houses unanimously.
Protecting consumers from unethical lawyers isn’t a Republican — or a Democratic issue. It is a public protection issue — that all could agree on. Unfortunately, tribalism continues to trounce good public policy. The 6-3 vote for HB 2119 went strictly along partisan lines.
In our state, the Bar keeps fighting similar reforms like Nebraska’s and California’s. The State Bar of Arizona will not fix itself. So after 85 years, it’s up to the body that created it — to fix it.