Government Preferences Posted on March 18, 2016 | Op-Ed

Arizona Lawyers Shouldn't Be Misled: They Have Constitutional Rights, Too

Yesterday, the Arizona State Bar sent an email to the state’s lawyers urging them to oppose House Bill 2221, a bill that would eliminate the Bar’s ability to force attorneys to fund its operations. The email warned melodramatically that the bill would mean a “drastic change” and create a “Frankenstein” version of the State Bar. But it made no mention of the fact that HB 2221 would help protect the constitutional rights of lawyers across the state, increase transparency by subjecting the Bar to public records laws that all other regulatory bodies must obey—and would leave in place all state laws that protect the public against dishonest or incompetent lawyers.

In fact, the Bar’s opposition to HB 2221 is just a reflection of its desire to retain its unjust power over the state’s legal profession. 

Forcing attorneys to join the State Bar violates the rights of free speech and freedom of association guaranteed by the United States and Arizona Constitutions. HB 2221 would minimize this violation of fundamental rights by requiring that mandatory bar dues be used only to regulate attorneys, and not for the political causes and extra amenities these dues currently fund.

The U.S. Supreme Court noted three years ago that the mandatory dues that the State Bar now imposes are a form of “compelled speech and association that imposes a ‘significant impingement on First Amendment rights.’” Such a burden can only be justified when it’s necessary for regulating lawyers. But it isn’t. Nineteen other states—including New York, Massachusetts, Pennsylvania, and Illinois, each home to some of the largest legal markets in the country—do not force attorneys to join a bar association, and they manage to regulate lawyers anyway.

Arizona’s Bar, on the other hand, currently collects mandatory dues for a whole host of activities that have nothing to do with regulating the practice of law. Some attorneys may find these services valuable and worthwhile—but that’s no justification for forcing all attorneys to pay for those services.

It’s because of these extra charges that the cost of practice in every voluntary bar State is hundreds of dollars lower than Arizona’s $490 mandatory charge. Nebraska recently implemented a change much like HB 2221 and attorneys there now pay $98 for regulation; if they choose to join the Nebraska Bar Association they pay $240 more.  Nothing in HB 2221 stops the Arizona Bar from taking a similar approach.

Rather than rely on coercion for its funding, a voluntary Arizona Bar will have to attract members who are willing to pay for its services. It may need to lower costs to be competitive. Right now, the Arizona State Bar has eight employees raking in salaries of more than $100,000 per year. The voluntary Colorado Bar Association, by contrast, has only one employee so richly compensated. The Arizona State Bar employs 98 people; the voluntary New York Bar Association—which has ten times as many members—only employs 125. Making Arizona’s Bar voluntary instead of forcing lawyers to subsidize it would encourage similar cost savings.

But instead of making the case that bar association membership is a good value, the State Bar is threatening to raise prices on optional services if HB 2221 passes.

Under HB 2221, the cost of attorney regulation will remain the same and attorneys will still pay it, including regulatory costs like the Client Protection Fund. In fact, the bill makes no changes at all to rules that protect clients from attorney wrongdoing; it only stops the State Bar from forcing all attorneys to fund extra amenities that only a few attorneys use.

But more is at stake here than dollars and cents. The fundamental question raised by HB 2221 is whether Arizona values free speech, free association, and transparency enough to impose modest limits on the Bar’s ability to take money from attorneys against their will, and require it to open its books to the public that it serves. On these facts, the Arizona State Bar’s email was silent. But the Constitution is not silent: lawyers can only be forced to join a group—or subsidize one—to fund the actual cost of attorney regulation.

Nineteen other States already regulate the practice of law without intruding upon attorneys’ First Amendment rights and forcing them to fund the amenities of a bar association. Arizona should follow the lead of states that have chosen to respect freedom of choice instead of coercion. 

Author

Jim Manley is a senior attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. Jim litigates Goldwater Institute cases nationwide, in the areas of free speech, economic liberty, and ... Read

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