Holt: fight at Legislature hangs State Bar in the balance

You might be interested in a fight going on in the Legislature for the last few years. It’s about whether or not all attorneys in Arizona should have to belong to the State Bar of Arizona. Now this isn’t not about depriving the Supreme Court of its ability to suspend or disbar lawyers.

Tim Holt

The court will always do that.

What this fight is really about is whether the quasi-governmental agency known as the State Bar of Arizona can act as both a lawyer regulator and a lawyer trade association. On one hand, the State Bar says it protects the public from lawyers while on the other hand, it says it serves the interests of those same lawyers.

Why should this interest you? Because those two goals don’t always line up. When they’re in conflict, neither the public nor lawyers are well-served. Here’s a great recent example.

Near the end of last year, the State Bar’s governing board approved spending $300,000 on a new program. That money is supposed to establish what the State Bar is calling a “Public Service Center.”

This name is clearly intended to convince the public that this center is to serve and benefit them.  Not so much. It’s really a tech-enabled lawyer referral operation helping lawyers prospect for clients and get more business.

In a mass email to attorneys, the State Bar announced its “Public Service Center” was about “improving the public’s access to justice. Just sort of warms your heart to know the State Bar is looking out for you. So, trusting the State Bar you go to the Center and look for the legal help you need.

First thing you do is complete an online form stating your legal needs to create a “legal project.” This enables those Arizona lawyers who participate to review the paid or pro bono project. If interested, they then disclose their profiles, fees (if applicable) and other relevant information to you.

There are already a half-dozen similar consumer-lawyer internet matching services online. None of them get to call themselves a “Public Service Center” run by the State Bar. If you don’t know what’s going on, why wouldn’t you trust the State Bar and go there, ignoring the other commercial services? I think marketing people call this “branding.”

As for promoting “access to justice,” how is going online to access a lawyer (something consumers can do right now) supposed to help Arizonans who can’t afford legal services? The State Bar leaves this question unanswered. Why? Because promoting low-cost and pro-bono legal help is not the real goal. It’s ridiculous to believe that by running a client lead-generator to grow the business of lawyers, the State Bar will also be helping Arizonans who can’t afford to hire a lawyer. Without lawyers volunteering to work pro bono or for reduced fees, this isn’t a public service.

When a trade association promoting the interests of its members tries to also serve the interests of the public, the train is going to jump the tracks and someone is going to get hurt. History bears this out. When there’s a conflict of interest between lawyers and the public, lawyers look out for their own self-interest first.

Recall that when the State Bar and the Arizona Supreme Court asserted it was unauthorized practice of law for title companies and Realtors to prepare documents used in real estate transfers, it took Arizonans voting overwhelmingly for Proposition 103 to amend their state Constitution to soundly reject that interpretation. And more recently, as in the case of legal document preparers, the public does not necessarily want or desire “protection” that self-interestedly preserves a lawyer monopoly that limits consumer choice.

To improve “access to justice,” the better fix is not a “Public Service Center” but solutions like strengthening existing pro bono legal services providers; and doing away with costs and barriers that keep inactive and retired lawyers from providing pro bono legal services.

But the best solution of all is to split the licensing and regulatory functions of the State Bar from the trade association functions. This dual mission creates a conflict that too often places the public interest behind the lawyer private interest. From contractors to CPA’s to physicians to dentists to architects, no other Arizona occupational licensing agency is both a regulator and a trade association like the State Bar of Arizona.

It’s well past the time, then, that the public and the private interest were separated.

Editor’s note: Mr. Holt is a West Valley estate planning attorney

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