Task force recommends that State Bar remains mandatory, makes changes

By Cynthia Price

Legal News

It probably did not come as a shock to many attorneys that the task force convened by the Michigan Supreme Court to consider whether the State Bar of Michigan (SBM) should be mandatory or voluntary came down on the side of "mandatory," but there is a lot in the report that people may find somewhat more surprising.

Creation of the task force in February of this year came about as a response to a letter from SBM President Brian Einhorn and Executive Director Janet Welch, which requested that the Supreme Court do so. A press release said that whether the state bar should be mandatory is a question "that [is] most appropriately addressed within the judicial branch of government, pursuant to the Supreme Court's exclusive constitutional authority to establish practice and procedure for the state's legal system under Michigan Constitution Article VI, Section 5."

That letter in turn was engendered by the introduction of SB 743 by Rep. Arlan Meekhof of West Olive.

The bill is a very simple change to the wording in 1961 PA 236 about the State Bar, making individual membership voluntary. Meekhof was widely reported at the time as having been inspired by last fall's Mackinac Policy Conference to advance the changes.

The Michigan Supreme Court charge to the group was not limited to consideration of mandatory versus voluntary, but also included the implicit question about how to protect the First Amendment Rights of individual members, and how to be sure SBM's actions comply with the U.S. Supreme Court's decision in Keller v. State Bar of California (1990) and its own decision in Falk v. State Bar of Michigan (1981).

Alfred Butzbaugh, chair of the task force, on which Welch served, quickly pulled together those appointed and they released their report June 2.

In addition to its first recommendation, that the state bar remain mandatory, the report continued by adding:

"Recommendation 2. To better protect State Bar members' First Amendment rights:

"- All State Bar advocacy outside the judicial branch should be subject to a rigorous Keller process and the State Bar should emphasize a strict interpretation of Keller

"-Funding of Justice Initiatives activities should be subject to a formal Keller review during the annual budget process

"- State Bar Sections that engage in legislative advocacy should do so only through separate entities not identified with the State Bar."

What some may find surprising about these recommendations is that there has, at least at times, been a sense that the State Bar is already acting in accordance with Keller.

In a 2002 article for the Michigan Bar Journal, Rhoades McKee attorney Bruce W. Neckers, SBM president at the time reflected that widespread understanding. With a subheading of "Thanks, Eddie Keller," Neckers' article reflected that some had initially considered the Keller decision to be bad for state bars, but concluded that in Michigan, the bar was better for it.

"The State Bar leadership believes that the largest percentage of our lawyers support our participation on the critical issues facing our profession rather than those that are questions of judgment, values, and emotion...," Neckers said. "[T]he role of the Bar is to represent all Michigan lawyers, and we believe it does so best when it refuses to take positions on political issues irrelevant to the practice of law, access to justice, or the operation of the courts."

The task force dove deeply into the implications of Keller, and found them to be more stringent than others may have in the past. The authors of the report note, "Michigan's current Keller boundaries and procedures are similar to those established in a plurality of other mandatory bar states, but the Task Force recommends a more rigorous standard."

Stating, "Michigan should adopt a narrow interpretation of Keller, bounded within the two purposes endorsed by Keller-regulating the legal profession and improving the quality of legal services," the report calls for an amendment to Rule 1 of the Supreme Court Rules for the State Bar, to remove the wording "and in promoting the interests of the legal profession in this state."

Though there was a dissenting opinion expressed by three of the 12 task force members that the State Bar should do no advocacy outside the judicial branch whatsoever, the remaining members felt that adoption of the recommendations for setting up an independent Keller review panel, publishing the results of its formal reviews on the website, sending them to attorneys who ask, publishing as soon as possible any dissenting opinions, and a few other safeguards would protect SBM member's First Amendment rights.

A majority of the task force members felt that the State Bar's ability to pull together disparate viewpoints and seek out the opinion of smaller and solo law firm members that might often be overlooked, provided the above procedures were followed, was worth preserving.

According to the report, "The Supreme Court invited the Task Force to examine what other programs the State Bar of Michigan ought to undertake to enhance its constitutionally-compelled mission." Other recommendations were:

"Recommendation 3. The State Bar's regulatory services should be better integrated with the activities of the other attorney regulatory agencies."

The task force had a number of recommendations for a stronger role of the State Bar in the Attorney Grievance Commission and the Attorney Discipline Board, but also recommended such significant changes as "the appointment of the Executive Director should be subject to confidential review and approval of the Supreme Court."

"Recommendation 4. Governance of the State Bar through the Representative Assembly and the Board of Commissioners should be modified."

The fine points of this including better definition of the policy-making roles of the Board of Commissioners and the Representative Assembly, requiring that all policy decisions be approved by both bodies (with the exception of positions on proposed court rules published for comment and pending proposed legislation), and setting of the BOC?and RA agendas by a joint meeting of a majority of the SBM officers and a majority of the officers of the RA.

"Recommendation 5. Membership dues for inactive State Bar members should be reduced, inactive member reinstatement should be made more accessible and rational, and the Supreme Court should convene a special commission to review active and inactive licensing, pro hac vice, and recertification issues."

The task force did a broad review of the policies of other state bar associations, including dues and fees, and stated, "Although Michigan's active dues are below the national average, Michigan's inactive dues are among the highest in the nation." The report recommends setting up a commission with representatives of the state bar, the Board of Law Examiners, the attorney discipline system, and Michigan law schools to address marketplace changes in cross-border practice and licensure.

Published: Mon, Jul 28, 2014