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Vol. 42, No. 3

Many challenges over many years: Unified bars face ups and downs

by Dan Kittay

Unified bar associations have faced attacks for many years from members and others who oppose paying bar dues in order to practice law within a state. As a recent panel discussion shows, the attacks continue, and bars need to be ready for new challenges.

“You don’t know where your challenges are going to come from as a unified bar,” said Jeannine McCoy, executive director of the New Hampshire Bar Association. “They can come from your members, the legislature, the courts, or other unexpected places.”

McCoy spoke at a 2017 National Conference of Bar Presidents Annual Meeting program called “Building the Capacity of Bars—Political Activism and Access to Justice: What Can Unified Bars Do?” Thomas C. Rombach, past president of the State Bar of Michigan, moderated the panel discussion.

A smorgasbord of challenges

New Hampshire has had what McCoy called “a smorgasbord” of such challenges over the years. For example, a member challenge in 1993 was based on a freedom of speech argument in which the member claimed the NHBA had a “militant feminist point of view.” The state’s Supreme Court rejected that argument.

The case that has had the strongest impact on how the bar operates came in 1987, years before the U.S. Supreme Court’s decision in Keller v. State Bar of California that governs how mandatory bars handle political activities, McCoy noted. The New Hampshire Supreme Court’s decision in Petition of William L. Chapman, an NHBA member who was against the bar’s opposition to tort reform legislation, established that there were limits to the political activities the NHBA could engage in. However, it also found that there were cases where such activities were permissible, including responding to legislation that affected the legal profession as a whole.

“We adopted what we call the Chapman Review,” McCoy said, explaining that this process consists of NHBA’s legislative staff reading each of the thousands of bills that are introduced in the Legislature, to determine if any of them meet the standard of widespread interest to the profession. Those that do are sent to the bar’s legislative committee, which makes a recommendation to the board of governors. The board then decides whether the bar should take a position on the bill.

“We try to be judicious about the positions we take in the Legislature,” McCoy said; most often, the bar instead serves as an information resource for legislators.

Members deliver vote of confidence

Almost two decades later, the bar faced another challenge—one that had a surprising result. A new law required the NHBA to conduct a vote of the membership in 2004 and every five years after that, asking whether members preferred a mandatory or voluntary bar. The outcome of the vote would determine the bar’s status.

A challenge to the law came to the state’s Supreme Court. The bar asked whether it should conduct the vote, since the required date would come before the court’s decision. The court said the bar should conduct the vote and keep the ballots sealed until the decision was released.

The court struck down the law in June 2004. At the association’s annual meeting, NHBA leaders decided—because of “curiosity or bravery,” McCoy recalled—to count the ballots. They found that 74 percent of those members who voted supported a mandatory bar. “We were surprised and pleased,” McCoy said.    

Recurring attempts to de-unify

The State Bar of Arizona has faced challenges to its mandatory status almost from the moment it was formed. “We go back to 1933, and from the beginning, we’ve had people who did not want a unified bar,” said Alex Vakula, the bar’s president.

“We’ve always been a right-to-work state, without a lot of unions,” he explained. “From the get-go, a lot of people viewed [the unified structure] as an attempt to unionize. That argument is still circulating through the Legislature.”

One of the current arguments by those opposed to a mandatory bar involves merit selection of judges, which takes place in three large counties in the state, Vakula said. The bar creates a list of qualified candidates and sends it to the governor, who must choose judges from the list. “A lot of legislators think we have too much influence in the selection of judges,” he added. “They think we’re ‘cooking’ the judges before they get to the governor.”

Legislative attempts to de-unify the bar have been ongoing, with two or three bills introduced each year, and one occasionally making it out of one house before it dies. The state’s Supreme Court created a task force to study the bar in 2015 and ultimately decided to keep it unified, Vakula said.

Staying ‘Keller” pure—and focusing on the public

The bar aims to remain “Keller pure” by educating instead of advocating. Vakula cited a recent issue of Arizona Attorney, the bar’s magazine, which devoted space to comprehensive arguments on either side of a proposal to split the ninth circuit. The arguments on either side were strong enough that the bar chose to present the opposing arguments rather than take a position, Vakula noted.  

One big change occurred at the start of last year: Arizona’s Supreme Court redefined the mission of the bar, effective January 1, 2017. “Our primary purpose is to serve and protect the public,” Vakula explained. “This is trying to get away from the argument that we’re a trade organization, or just out to benefit lawyers.”