• Mar 2, 2016
  • Voluntary Bar Legislation

By a vote of 31-29, House Bill 2221 passed out of the Arizona House this past Thursday, February 24, 2016. The bill, which protects attorneys’ free speech rights by requiring that mandatory dues be used only for regulatory functions, moves to the Arizona Senate.

The State Bar of Arizona is running its usual campaign of misconstruction, misdirection, and misstatement about the bill. Its latest intentional misreading of the legislation was transmitted via blast email on Friday, February 25, 2016. The “Bar Track” legislative tracking newsletter declared that HB 2221 “creates a two-tiered membership system.” Of course this is nonsense.

What the state bar’s executives are really complaining and worrying about isn’t “two-tiered membership” but the imposition of restrictions on the Bar’s unbridled, unaccountable and non-transparent use of mandatory bar dues. Instead of having access to 100% of mandatory bar dues, HB 2221 limits mandatory membership assessments solely to the regulation of the legal profession. The bill allows the Arizona Bar to collect voluntary dues to finance its operations and nonregulatory activities. By allowing the Bar to only receive funds related to performing regulatory functions, HB 2221 minimizes the violation of attorneys’ free speech rights. Read the final engrossed version of HB 2221 here.

Finally, contrary to the other outright distortions being made by Arizona Bar leadership and their proxies, HB 2221 isn’t creating “a hybrid bar that isn’t being done anywhere else.” This is what its chief communications officer recently wrote to a House Member he was lobbying against the bill. The truth is that the Nebraska State Bar Association has been operating under this model since its state high court put the reforms into place on December 6, 2013 in its ruling In re Nebraska Bar Association.”

Here in part is what the Nebraska Supreme Court said,

“In our view, the best solution is to modify the court’s rules creating and establishing the Bar Association (and other related rules) to limit the use of mandatory dues, or assessments, to the regulation of the legal profession. This purpose clearly includes the functions of (1) admitting qualified applicants to membership in the Bar Association, (2) maintaining the records of membership, (3) enforcing the ethical rules governing the Bar Association’s members, (4) regulating the mandate of continuing legal education, (5) maintaining records of trust fund requirements for lawyers, and (6) pursuing those who engage in the unauthorized practice of law. The mandatory Supreme Court assessments supporting these functions will be paid to the Bar Association on behalf of the Nebraska Supreme Court in much the same way that the existing disciplinary assessment is administered. By limiting the use of mandatory assessments to the arena of regulation of the legal profession, we ensure that the Bar Association remains well within the limits of the compelled-speech jurisprudence of the U.S. Supreme Court and avoid embroiling this court and the legal profession in unending quarrels and litigation over the germaneness of an activity in whole or in part, the constitutional adequacy of a particular opt-in or opt-out system, or the appropriateness of a given grievance procedure.

“The remaining activities of the Bar Association will be financed solely by revenues other than mandatory assessments. Obviously, voluntary dues would be a significant portion of those revenues. Voluntary bar dues fall outside the realm of the compelled-speech jurisprudence. Many members of the Bar Association may well elect to pay the voluntary dues assessment—particularly if the Bar Association strictly adheres to the use of such funds for purposes clearly benefiting the bar as a whole and avoids entanglement in ideological or political issues or legislation.


“We disagree with the parade of horrors predicted by both petitioner and the Bar Association regarding such an arrangement. Petitioner cautioned during his oral presentation that such a bar would be “cumbersome” compared to a purely voluntary bar. But petitioner’s approach fails to preserve the regulatory structure erected beginning in 1937 and would abandon the public’s reliance upon the existence of a mandatory bar. And our prior segregation of a bar-disciplinary assessment clearly demonstrates that administrative issues can be managed easily. Thus, we conclude that petitioner’s fear is unfounded. The Bar Association, on the other hand, asserted that having to perform an item-by-item germaneness analysis would be “not workable” and “way too expensive.” But our approach entirely avoids any such difficulty. We recognize that we have intentionally chosen to draw the line in a manner that forgoes the opportunity to expend mandatory assessments for some purposes that might well be adjudged as germane. By drawing the line for use of mandatory bar assessments well within the bounds of the compelled-speech jurisprudence, we ensure that the assessments—which will be administered by the Supreme Court—will be used only for activities that are clearly germane. Here again, our experience with the disciplinary assessment shows that this separation between mandatory and voluntary dues can be readily accomplished. And by drawing the line in this way, we will clearly avoid the morass of continuing litigation experienced in other jurisdictions.”