Senate OKs making State Bar membership optional

Kyra Haas Arizona Capitol Times//February 25, 2022

Senate OKs making State Bar membership optional

Kyra Haas Arizona Capitol Times//February 25, 2022

A bill requiring the Arizona Supreme Court to license attorneys in Arizona and making State Bar of Arizona membership optional passed out of the Senate on party lines February 23. 

Senate Bill 1565 is one of two bills sponsored by Sen. Vince Leach, R-Tucson, that takes aim at the Bar. The other, Senate Bill 1566, would have required the Bar to compensate an attorney if it doesn’t prevail in the final decision in a disciplinary matter against the attorney. SB1566 was retained on the Senate committee of the whole calendar February 23 and moved forward on the 24th before failing on third read. 

“People are revolting internally against a system that is there to take care of them, as well as get rid of or deal with attorneys that are running afoul of being a member of the court,” Leach said in discussing the bills during a committee hearing last week. 

Leach said that the bills stemmed in part from the Secretary of State’s Office “weaponizing” the Bar’s disciplinary process in filing Bar complaints against the attorney general and his staff in October 2020. The Bar investigation into those complaints concluded with a diversion agreement earlier this month, which is an alternative to discipline that still requires Attorney General Mark Brnovich to comply with certain confidential terms. 

Leach said that in addition to the Attorney General’s Office, he had spoken with attorneys from “other industries” who took issue with the Bar but were “afraid of testifying” because of concerns of retaliation.  

There’s also concern that the Bar has a partisan bent and that it uses member dues to lobby for policies that not all of its members agree with. Attorney Kory Langhofer testified in support of the bill and questioned the amount the Bar truly spends on lobbying, saying that when he has asked for his dues to be reimbursed, he’s gotten back less than a dollar.  

“They’ve lost the confidence of conservatives, but they rely on the consent of conservatives to maintain their monopoly,” Langhofer said. 

State Bar Executive Director and CEO Joel England said the Bar opposes both bills. He told the Senate Judiciary Committee that 7% of cases resolve in an average of 63 days; 91% are dismissed, 7.4% end with a diversion agreement and 1.4% result in sanctions.  

“I ask when you look at the Bar and make a determination of our functioning, you look at the totality of cases that we deal with, and not one single case,” he said. 

The Arizona Supreme Court also opposes the bills, saying there’s no problem to fix.  

“An integrated bar provides a holistic and cost-effective approach to a healthy legal profession through preventive measures and a discipline system for accountability,” the Court said in a statement. “Breaking-up the bar into two units—one that licenses and regulates and the other a voluntary service group—leads to greater expenses as infrastructure must be duplicated. When surveyed, a majority of lawyers wanted to keep a mandatory bar.” 

Attorney Paul Avelar with Institute for Justice supported the bill, calling Arizona’s Bar setup “weird” as a quasi-public, quasi-private institution that “is both a trade association and purports to regulate the practice of law.” In 2014, Avelar was appointed by the Arizona Supreme Court’s chief justice to a task force looking at the role and structure of the Bar. He then served on a legislative study committee looking at the Bar as well through 2018. 

“You don’t need mandatory membership to regulate the practice of law,” Avelar said. “We don’t do that with doctors or anyone else; we shouldn’t continue to do it here in Arizona.” 

Avelar said he did not think the state was in line with the U.S. Supreme Court’s 2018 Janus decision, which stated that government employees could not be forced to join unions or pay union dues as nonmembers. He said the same idea extends to mandatory Bar membership. Attorneys in Oklahoma and Texas have asked the court to review mandatory Bar dues considering the Janus decision, though the justices declined a similar petition in 2020. 

The State Bar disagrees. 

“There’s a fundamental debate going on in the country about whether the bar dues are more like a union or not,” England said. “In our view, we’re not based on the definitions because the state Supreme Court has given us a mission to serve and protect the public and not as an attorney trade organization.” 

Phoenix-based attorney Chuck Muchmore, who was admitted to the State Bar in 1976, said he worried that the bill would “severely and adversely” affect the Bar’s finances, noting that most of its budget is supported by member dues. Dues are $505 for active attorneys who have been admitted three years or longer, and $345 for those who were admitted fewer than three years ago.  

Muchmore serves on the Attorney Discipline Probable Cause Committee, which is a grand jury of sorts for Bar complaints. He took issue with the idea that the Bar is overreaching, saying he and the other members of the committee pushed back against complaints they thought shouldn’t be investigated. 

Muchmore also opposed the bill regarding Bar complaints, saying it would have a chilling effect on the Bar prosecuting disciplinary cases. He also said he thought it violated the separation of powers. 

“It’s the court’s job, not the Legislature’s to discipline attorneys, and it has been for ages,” Muchmore said.  

England noted that about 70%-80% of disciplinary cases are dismissed within the first three weeks. He said he thought the Bar had an adequate system to toss out frivolous complaints quickly. Rick DeBruhl, former long-time Bar spokesman, said there were tons of frivolous complaints against elected officials filed during his nearly decade working for the Bar. 

“They all disappeared,” DeBruhl said. “Because the reality is, we knew they were frivolous; we knew they weren’t valid.” 

Leach brought up the new task force formed by the state Supreme Court that will look at whether changes should be made to ethics rules for public lawyers, such as the Attorney General and county attorneys. 

“So, somebody in the court system or the Bar system has come to the realization that maybe you’re not prepared,” Leach said. 

England said the State Bar is involved in the task force. He said the Bar applies the rules as they exist from the Supreme Court, and if the court decides to change some of those rules, the Bar welcomes the changes. 

Proponents of the Bar complaints legislation say that the Bar should have some skin in the game, arguing that the only people who can “lose” in the current setup are the attorneys facing the complaints.  

“The Bar has created a system described as loser pay – unless the Bar loses,” Leach said. “How is that neutral and fair?”