Arizona State Bar Revisions

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Changes are being considered for the State Bar of Arizona, an organization that helps ensure the professionalism and competence of lawyers in our state. The Task Force on the Review of the Role and Governance Structure of the State Bar of Arizona created a draft report during meetings over the past year on its findings and recommendations. Arizona Supreme Court Justice Rebecca White Berch chaired the task force and will talk about recommended changes for the state bar.

TED SIMONS: A task force is reviewing the role of governance and structure of the state bar of Arizona, which helps ensure the professionalism and competence of Arizona attorneys. Joining us now is the chair of that task force, Arizona Supreme Court justice Rebecca White Berch. Welcome to "Arizona Horizon."

REBECCA WHITE BERCH: Thank you so much, I'm glad to be here.

TED SIMONS: Good to have you here. Let's define terms from the get-go. What is the state bar of Arizona?

REBECCA WHITE BERCH: I suppose the easiest way to start with what it's not, it's not a trade union, it doesn't lobby or negotiate for terms of employment like wages and hours on behalf of attorneys. Instead, it's a professional organization. It's designed to, as you said earlier, help ensure the competence and professionalism of Arizona lawyers. And in doing that it helps to protect the public.

TED SIMONS: And you have now drafted this report the committee has, changes are recommended. Why was this done?

REBECCA WHITE BERCH: Well, there was no problem that prompted the Chief Justice to call for this task force to review state bar governance. We oversee the state bar, the Supreme Court oversees the state bar. As a matter of best practices we regularly review all of our programs. So it was time to review the state bar.

TED SIMONS: Why does the Supreme Court oversee the state bar?

REBECCA WHITE BERCH: Lawyers are required to be licensed in Arizona to practice. The Supreme Court has oversight by constitution over the practice of law in Arizona. And that forms the foundation. And the state bar is an organization of Arizona lawyers, all lawyers are required to belong to it. And it is a subsidiary, if you will, of the Court.

TED SIMONS: And one of the recommendations, I think number one, to keep that integration intact, right?

REBECCA WHITE BERCH: That's right.

TED SIMONS: Was there a move to maybe separate?

REBECCA WHITE BERCH: We had one dissenter on our committee and it was certainly a subject that we looked at. We have a mandatory bar, should it remain a mandatory bar. The committee felt very strongly that it should for a number of reasons. The state bar does a lot of things to help protect the public. It provides member assistance programs, it tries to help those lawyers who have substance problems with alcohol or drugs, those who simply go out of business. It has conservatorship programs that help make sure those clients' files are protected and provided to somebody else who can pick up the case. It assists lawyers with handling trust accounts and so forth. A lot of those programs couldn't exist if all lawyers didn't help pay for them. So for example, we hear people say, I don't need these programs, I don't use drugs, I don't have substance abuse problems of other kinds. I'm not going to abandon my practice, I don't need these services, why should I pay for them. Like so many other things in life, if we didn't all pay in, these programs just wouldn't exist, they do help protect the public.

TED SIMONS: And number two on your list was to focus on protecting the public as you've mentioned. There's a lot of governing board reducing the numbers of officers, changing the name of the board of governors, all this sort of thing. How important is that, how much consideration is that being given?

REBECCA WHITE BERCH: There are about three subjects in there. Reducing the size of the board is one of our major proposals, and probably the one that's garnered the most interest. Focusing on the protection of the public aspect seemed like a natural for us. It's already in our rule 32, the rule that sets up the governing framework for the State bar. But we decided that we needed to highlight it more as a mission. There's a proposal in there to change the name of the board of governors from the board of governors to the board of trustees to emphasize the board members' fiduciary duty to the members of the public. And then as part of this entire study we looked at best practices for governance of nonprofit or pro bono boards. And the literature is very clear that the best boards are governed by boards that are no larger than 20. The state bar board of governors has 30 members on it. So we've made a couple proposals to downsize. We couldn't agree on just one. We're going to put it back in the lap of the Supreme Court. We will give them three options and they can adopt one of these three options or make up their own.

TED SIMONS: Good luck to you, as you make the decision.

TED SIMONS: I noticed as well that there was -- well, I didn't really notice this. Maybe that's -- what I noticed was that I didn't notice. The idea that attorneys are regulating attorneys, and there could be a conflict of interest here. Some folks that are critical of state bar have mentioned this. Is that not addressed here? Is it addressed and I just missed it? What's going on?

REBECCA WHITE BERCH: Sure. In fact, it is addressed. There was a recent U.S. Supreme Court opinion, the North Carolina State Board of Dental Examiners. I thought my committee was winding down its work; this case came down and required a lot of reexamination. What that case says is when you've got professionals regulating other professionals who are active participants, that regulating board may be stripped of its state action immunity for antitrust purposes. I know this is getting a little bit in the weeds. But the bottom line is, in order to have that immunity there has to be Supreme Court oversight or government oversight in the case of the dentists. For the lawyers it'll be Supreme Court oversight. This proposal addresses some of those concerns in several ways. The three proposals for how to reconfigure the bar, or whatever proposal the court ultimately lands on, will probably involve a higher number of public members to help protect the public. It will make sure that we have oversight in place for any of the activities of the state bar that don't currently have directive oversight by the Supreme Court. You might notice the seventh proposal dealt with the board of legal specialization. This is one where the committee looked at it and felt we didn't have enough active Supreme Court oversight.


TED SIMONS: We've got about 30 seconds. What is the biggest challenge facing the bar?


REBECCA WHITE BERCH: I think the biggest challenge is always to maintain professionalism and to protect the public. Those are the two main ones. One other shot, if I could. We are actively seeking public input on this task force report. I would like to encourage your listeners, there should be an address on the screen -- [email protected].

REBECCA WHITE BERCH: Or go there or the Supreme Court's home page on the upper right-hand side, there's an article about the task force. If you click on that you will be directed to a page that'll tell you where to find the report itself. It'll direct to you a seven-minute infomercial, and we look forward to everyone's comments on the task force report.

TED SIMONS: Very good, thank you so much for joining us.

My pleasure.

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