Vol. 42, No. 6

What’s ahead for unified bars? Bar Leader talks with three EDs/CEOs

by Marilyn Cavicchia

While some unified bars remain relatively unruffled, for many, the past few years have been a bit rocky, with challenges coming from the state Legislature, the state Supreme Court, lawsuits, or from some other source. Bar Leader recently spoke with the executive directors or CEOs of three unified bars—in North Dakota, Arizona, and Texas—to get a sense of what’s going on in their jurisdiction and how they’re keeping their elected leaders informed on what’s happening in their state and around the country.

Bar conferences, bar-related groups help keep leaders current

John Phelps says that in the 10 years he’s been in his position as CEO and executive director of the State Bar of Arizona, there’s been “a steady drumbeat” toward moving away from the unified bar model in general. It’s important, he believes, for those who lead or work at unified bars to “actually start having an honest conversation about where all of this seems to be heading or may be heading.” This is a much better approach, he adds, than “just hoping that it all goes away—and I don’t think it is.”

Phelps notes that this healthy dialogue has been occurring among the bars that attend the Western States Bar Conference; indeed, he says, discussions of the unified structure and possible changes are “front and center” for that conference. The State Bar of Arizona’s leaders attend Western States as well as being active in the National Conference of Bar Presidents, he notes.

The State Bar Association of North Dakota attends both the Western States Conference and the Jackrabbit Bar Conference (which it hosted earlier this year), and Executive Director Tony Weiler says both groups have seen a lot of discussion of deunification issues, both at meetings and on listserves. Weiler also finds membership in the National Association of Bar Executives, and its Governmental Relations Section, to be helpful; he regularly relays information from those meetings and listserves to his bar leaders.

The State Bar of Texas goes to both the Southern Conference of Bar Presidents and Western States conference, as well as meetings of both NABE and NCBP, notes Executive Director Trey Apffel. As state bar president in 2014-2015, he adds, Apffel saw first-hand the lively conversation that occurs among unified bars at those meetings.

“It can be an eye opener at times,” he says, adding that at other times, the discussion serves as a reminder that his bar has not been experiencing many of the issues that other unified bars have faced.

Do most members understand the unified bar model?

In terms of the general membership, Phelps believes that many Arizona lawyers don’t realize that the bar’s primary purpose is to protect the public—something that was recently given increased emphasis in the bar’s mission statement, by order of the state Supreme Court. When he goes out to talk to members and clarifies the public purpose of the bar, many are a little surprised “and some are a lot surprised” that the bar isn’t a trade association that exists primarily for their benefit.

The composition of the 34-member board might lend strength to that impression, Phelps says: Of the 26 voting members, 19 are elected. “Why wouldn't the membership think that the board is here to represent their interests and their constituencies?” Phelps asks.

The legal profession has changed significantly—becoming more commoditized—since the unified (or integrated) model first arose, Phelps said, and many lawyers are no longer acculturated to the idea that bar membership is an obligation that comes with working in a noble profession. And this isn’t a new phenomenon, though it’s been well publicized in recent years, Phelps believes: He acknowledges that he went to law school “a long time ago” and says he doesn’t recall hearing much about bar membership while he was a student.

Weiler can confirm that many members in unified bar states don’t always discern between mandatory and voluntary membership models: Before becoming executive director in 2013, he practiced law in North Dakota for about 15 years.

“I didn’t really know there was a difference between a unified bar and a non-unified bar, and rarely did I ever hear of Keller v. State Bar of California,” he recalls. “I just practiced law and I appreciated what SBAND did, whether I was required to join or not.”

Because of its small size (about 3,000 members) and the fact that its regulatory role is quite minimal, he adds, his bar feels like a bit of a “hybrid” that sometimes seems to have more in common with voluntary bars than with other unified ones.

A closely watched case involving North Dakota

Of course, some members do discern between the two models, and sometimes challenge the unified bar over the use of their dues, or other issues. In 2014, a lawsuit arose in North Dakota that has continued to wind its way through the courts ever since: Fleck v. Wetch, et al. A lawyer named Arnold Fleck supported a ballot measure involving shared parenting in custody cases and sued when he realized that SBAND was using dues money to oppose that measure. (Joe Wetch was president of the bar at that time.)

Weiler believes that SBAND, as the nation’s oldest unified bar (founded in 1899) was a natural target for the Goldwater Institute, which for years has been leading or supporting efforts toward deuinfication. Thus far, Fleck and the Goldwater Institute have been successful with one part of their “three-pronged approach,” Weiler says: The federal district court found that the bar’s refund policy in such cases did not comply with Keller and Abood v. Detroit Board of Education, so the bar changed its policy.

The other two prongs are opt-in rather than opt-out for Keller-related uses of dues, and deunification. Thus far, the bar has prevailed, but that could change: In September 2018, the U.S. Supreme Court plans to consider whether to grant a writ of certoriari.

Aside from the case involving his own bar, Weiler was tracking Janus v. AFSCME and its implications for Abood, which was cited in Keller. (In late June, the U.S. Supreme Court decided in favor of plaintiff Mark Janus.) Weiler also makes sure that all elected leaders and board members are up to speed, though he notes that most are already quite familiar with Fleck, which he also touches on during board orientation.

Sunset review in Texas prompts a referendum change

Many other unified bars are aware that the State Bar of Texas undergoes a “sunset review” by its state Legislature every 12 years (though a schedule change means the most recent one, in 2017, was 14 years after the previous one, rather than 12). Apffel notes that while it may seem stressful to routinely undergo this review—something that all other state agencies in Texas must do, too—the process is actually beneficial.

“We identify areas of potential concern, and then we address and debate those issues,” he explains. “Then we come to some conclusion about what can make us a better organization from an operational standpoint—and then that’s where we try to go.”

In the 2017 sunset review, the question of deunification was not raised, but there was a bit of uncertainty regarding the bar’s referendum processes for rules changes and for dues. The sunset staff recommended eliminating both processes entirely, but the sunset commission recommended keeping the rules referendum but adding some new steps. As for the dues referendum, after a bit of pushback from some members, what ultimately passed was that the bar must issue a referendum for any dues increase over 10 percent that occurs between sunset reviews.

“There is a cost factor to a referendum when you have 100,000 lawyers,” Apffel notes; still, he adds, the bar is satisfied with the referendum processes moving forward—and the 2017 sunset process was among the smoothest he has seen.

What could happen next?

If lawyers in Arizona didn’t have to join the state bar, would they? The state Supreme Court floated this question earlier this year via a statewide survey to all lawyers—the results of which have not yet been released. Phelps notes that the survey set some strict, hypothetical conditions for lawyers who declined membership (including needing to disclose to clients that they were not members), so a favorable response would not necessarily prompt a sigh of relief. Indeed, he adds, the fact that the court sent such a survey let him know that it is at least considering a different model—though he has been told that, for now, nothing will change.

Meanwhile, the bar continues to face other challenges, Phelps says: For the past five years, there’s been at least one bill, and sometimes more than one, “designed to dismantle the mandatory bar.” One perennial supporter of these bills is a past bar board member, Phelps notes. Also, the Goldwater Institute is headquartered in Phoenix and supports deunification efforts in the Arizona Legislature and by petitioning the court for a rule change.

Like Weiler, Phelps was closely watching the Janus case and believes that overturning Abood could mean that unified bars will soon see a flurry of lawsuits from members, from the Goldwater Institute, and from any other interested parties—which may wear out state courts and ultimately bring about deunification.

“I think it really is the state supreme courts that hold the future of mandatory bars in their hands,” Phelps says.

(Note: A previous version of this article indicated that the U.S. Supreme Court granted a writ of certoriari in Fleck v. Wetch. In fact, this will be considered in September. Bar Leader regrets this error.)