Robert Hawley, deputy and acting executive director of the State Bar of California, is the first to admit that his bar is different from a lot of others.
“It’s like a municipality,” he said, with a total of 10 lawyers representing the bar—eight on staff in the general counsel’s office—and six to 12 lawsuits going on at any given time.
But whatever their size and their regulatory function (both of which are why the State Bar of California requires so much legal representation), “All bars need counsel,” Hawley told members of the National Conference of Bar Presidents, National Association of Bar Executives, and National Conference of Bar Foundations at their 2015 Annual Meeting in Chicago.
Joining Hawley on a panel to discuss why and how every bar association should have a general counsel or other legal representation were: Scott A. Chinn, past president of the Indianapolis Bar Association and current member of the NCBP Executive Council; Rew R. Goodenow, past president of the State Bar of Nevada and immediate past president of NCBP; and Lauren Robinson, senior associate general counsel for the ABA. John K. Rubiner, past president of the Beverly Hills Bar Association and a member of the NCBP Executive Council, moderated the discussion.
Why do all bars need a good lawyer?
What about bar associations that don’t get sued often, or ever?
Besides handling litigation and offering advice to the ABA body that accredits law schools, Robinson listed several areas—some of which could apply to a bar association of any size—in which the ABA general counsel’s office advises leaders and staff: contracts, labor and employment, and nondues revenue.
Every bar association deals with corporate governance and business law, Goodenow added. CLE alone is rife with business law matters, he said; examples include questions about who owns the materials, and whether photo and video consent forms are in place and adequate. Bars that have a regulatory function are, of course, open to more potential legal challenges; for example, Goodenow said, they’re often faced with requests for information regarding disciplinary matters.
“The executive director should not be the general counsel, too,” Hawley believes; this is a common practice, he added. “Talking to yourself” is not the best way to think through a legal issue, he explained. Often, he believes, an executive director who is also a lawyer wants to be the general counsel so there’s not “a competitor” who may challenge him or her on some points.
Likewise, Hawley said, one or more board members shouldn’t act in the general counsel capacity, either. There’s too much potential conflict of interest, he explained; risk management experts say lawyers should never act as counsel for any organization of which they are board members.
One idiosyncrasy for bar associations is that the boardroom is full of lawyers, and it can be tempting to blur the lines. Having a dedicated general counsel helps prevent a board member from “becoming the de facto lawyer for the organization,” Hawley noted.
What if you can’t hire a GC?
Saying that someone other than the executive director or a board member should act in a general counsel-like capacity is not the same as saying that every bar must hire a general counsel, the panelists noted.
That role can also be filled, and a valuable outside perspective gained, by asking a respected lawyer in your community to be counsel to the bar, Goodenow said, adding that many would be honored to help on a pro bono or reduced-rate basis. It might be worth setting up a similar arrangement with a second lawyer, just for litigation, he suggested.
At the Indianapolis Bar Association, the president appoints a legal counsel as a voluntary position with a one-year term. Chinn served in this role twice: once, four years before he became president, and again two years after—which, he said, gave him “the perspective of having been the client.”
Indianapolis is fortunate to have enough “bar junkies” who are eager to serve as counsel, Chinn said; if your bar wants to follow that model but can’t find one person willing to take it on, he suggested, the best solution might be to appoint two. If you have a senior lawyer in mind, but he or she is too busy, Chinn explained, you could appoint a younger, newer lawyer to ease the burden by serving as deputy counsel.
For the younger lawyer, he added, this can be “a great opportunity for leadership and service,” and many large firms are willing to allow two of their lawyers to serve in this way. Typically, pro bono counsels come from large firms, he added; a solo or small-firm lawyer might find it to be too big of a time commitment.
It’s important for bar leaders and the prospective pro bono counsel to have “a good, honest discussion at the outset” regarding their expectations, Chinn noted. Questions to consider include how much time the volunteer will be expected to devote to this role, and to what degree there might be an opportunity to bring in other lawyers from his or her firm to provide additional expertise when needed.
If you’re the president and will appoint the pro bono counsel, Chinn said, it’s important not to just choose “your buddy”—you need someone who can tell you important things that you might not want to hear.
Because “your client group is all lawyers,” Chinn noted, acting as voluntary counsel takes real “art of practice,” along with emotional intelligence and some careful thought before the term begins.
And as helpful as this appointed counsel can be, he said, a bar association might still wish to set aside some budget to hire a lawyer “for when times are really tough.” In litigation matters, Chinn asked, do you really want the bar’s only representation to be pro bono?
Hawley, too, added a note of caution regarding pro bono counsel. You never know when a big issue might arise and become “the pro bono case from hell,” ultimately costing the bar enough money to put it out of business. Reduced rates might be a better idea than pro bono representation, he suggested.
It’s great for the bar to have a legal committee, Hawley added, but it’s important to remember that while they oversee the bar’s legal matters and represent the client’s interests—in this case, the bar's—they’re not the ones actually doing the legal work.
Having a general counsel on staff provides “continuity and oversight,” Hawley said, and you’ll lose continuity if you rely on outside counsel and a committee that then turns over.
Rubiner offered another approach, one that has worked well for the Beverly Hills Bar Association: The bar has hired lawyers from the same firm for 20 or more years, mostly pro bono but with some payment if something happens that necessitates that the work go “above and beyond.”
This way, he noted, the bar is able to have some continuity and institutional memory in its legal representation, and the firm enjoys the prestige of being the bar’s law firm—something it mentions on its letterhead.
Don’t wait for a lawsuit
Whether a staff general counsel, a pro bono counsel, a longtime relationship with a firm, or any other arrangement, Hawley said it’s critical that whoever represents the bar association have some experience working with this type of organization.
“Representing an entity is almost a skillset unto itself,” he said, noting that even the simple question of who the client is, and the fact that it’s the bar as a whole, not the president or the board, requires “sophistication” and experience.
The panelists also agreed that it’s dangerous to wait until there’s a lawsuit or other big issue—or to assume that any bar association is immune from legal difficulties and need not appoint any type of representation.
Whatever arrangement best suits your bar, Robinson said, do make sure there’s someone “already cued up to help.”