A solution in search of a problem?

  • Feb 5, 2016
  • M. R. Hernandez, Esq.

Last March, in an email letter to Arizona special interest bar associations asking for their help “to fight House Bill 2629,” last session’s voluntary bar legislation, State Bar of Arizona CEO and Executive Director John Phelps declared, It’s a solution in search of a problem — During the Judiciary Committee hearing, Rep. Farnsworth called the bar political and dominated by large firms. Because of US Supreme Court rulings, the bar does not take a stand on political issues. Currently our board has 30 members, of which two are from large firms. In fact, we have far more small and solo attorneys on our board. Rep. Farnsworth didn’t detail what he believes are our political activities. The reality is that we’re a lot more boring than people think.

The SBA’s claim that this is a “solution in search of a problem” underscores its longtime insularity concerning its restive members. That state bars engage in politics is hardly news.

Unless specific procedural protections are in place, an individual’s rights against compelled speech and compelled association are violated when a mandatory bar uses mandatory member dues for purposes not germane to regulating the legal profession or improving the quality of legal services. Keller v. State Bar of California, 496 U.S. 1, at 13–14 (1990); Kingstad v. State Bar of Wisconsin, 622 F.3d at 712–13 (7th Cir. 2010); see also Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2295–96 (2012); Abood v. Detroit Board of Education, 431 U.S. 209, 235 (1977).

The SBA calls itself ‘Keller-pure.’ However, because it functions with very minimal transparency, members can either take the self-serving claim on faith or invest the burdensome time and resources to ferret out violations¹ — but well after the fact as objecting members don’t usually find out about the Bar’s political or ideological stances until after the compelled speech has occurred.

As pointed out in dissent by Paul Avelar, a member of the Arizona Supreme Court Task Force on the Mission and Governance of the State Bar, by its own admission, the State Bar continues to spend its members’ dues on lobbying, electioneering, and other political speech, most prominently about the continued existence of the integrated bar itself and the merit selection of judges . .  .

Whether these activities fall within Keller or the numerous cases expounding Keller since then or not — and there is reason to believe not, see Keller, 496 U.S. at 14 (the integrated bar is justified only to the extent its activities are “germane” to “regulating the legal profession and improving the quality of legal services”) — the State Bar is undoubtedly taking political positions that some of its members disagree with and using those members’ mandatory fees to do so.

SBA disclaimers notwithstanding, take for instance the bar’s house publication, Arizona Attorney, which is paid for by all member dues. It regularly features articles espousing ideological viewpoints from Citizens United to the 2nd Amendment to ‘Dark Money.’

As for using member monies to take political positions, this remains an ongoing problem in other jurisdictions, too. Last year, for example, a North Dakota lawyer sued the North Dakota State Bar alleging violations of the U.S. Supreme Court ruling.²

Similarly, in 2014, in response to public criticisms, the State Bar of Michigan³ petitioned its supreme court to conduct an internal review of how the bar operates within the framework of Keller v. State Bar California. In Keller, the U.S. Supreme Court said that mandatory bar associations cannot use dues money to fund certain ideological and political activities. And in 2013, citing emerging First Amendment U.S. Supreme Court jurisprudence, the Nebraska Supreme Court dramatically restricted bar member dues expenditures between mandatory and non-mandatory functions.

Returning to Arizona, the SBA employs lobbyists who purportedly only monitor legislation. But during the recent meetings of the Arizona House Ad Hoc Study Committee on the State Bar of Arizona, it was unclear how much the State Bar actually spends on lobbying since it chooses to be less than transparent with its members about its expenses.

As for the role of the SBA board, the volunteer board of governors is comprised of working professionals constrained by their own time and work demands. It can at best provide but minimal oversight and must instead rely heavily on self-interested staff and executive management for guidance and support. Rep. Farnsworth may or may not have been referring to the board in his remarks or to the SBA, generally. But with regard to the SBA generally, the fact is that large firms do underwrite the SBA’s annual convention. And given their critical mass, they have considerable clout in board elections and wield influence on leadership as large firm lawyers are regularly asked to serve on key bar commissions and task forces.


¹ A task not so easily done. See Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey of Unified Bar Compliance with Hudson and Keller, 1 Tex. Tech J. Tex. Admin. L. 23, 24 (2000)  ² Fleck v. McDonald et al., http://plainsit