Pursuant to Rule 28(D)(b)(ii), I submit the following comments in support of and in opposition to R-18-0014. This Court has, over the years, taken steps to shield the chief bar counsel from the influence of the bar. Although I support most of R-18-0014 because it reinforces the separation, R-18-0014’s proposed Rule 49(e) potentially increases the Board of Governors’ influence over the chief bar counsel. Accordingly, this Court should adopt all of R-18-0014 expect proposed Rule 49(e), which should be rejected.
The State Bar is an “integrated” bar association. It combines both regulatory and trade association functions in a single, non-governmental, nonprofit (501(c)(6) – trade association) organization. The State Bar is run by the Board of Governors, a group that consists largely of lawyers elected by lawyers and no one else. I have previously noted the conflicts of interest and separation of powers problems inherent in such an organization, Paul Avelar Comments to R-16-0013, and will not belabor them here.
I believe this Court is aware of the conflicts of interest in the integrated bar association model and has, over the years, attempted to separate the regulatory portions of the State Bar from the lawyer-controlled trade association functions. One of the ways the Court has done this is to establish a professional disciplinary prosecution department that, though physically housed in the State Bar’s offices, is not overseen by the Board of Governors. See Report of the Task Force on the Review of the Role and Governance Structure of the State Bar of Arizona (Sept. 1, 2013) at 13 (“[A]ttorney admissions and discipline are primarily functions of the Supreme Court, and only to a lesser degree of the SBA’s professional staff, which reports to the SBA’s executive director rather than to the board.”).
Portions of R-18-0014 reinforce the separation of the regulatory aspects of the State Bar from the trade association functions and should be approved by this Court. Proposed Rules 49(a), (b), and (c), for example, make clear that the chief bar counsel (and his or her staff) acts under authority granted by this Court, not the Board of Governors, and that chief bar counsel is appointed by the executive director, subject to this Court’s approval, not the Board of Governors’ approval. Other changes in R-18-0014 make technical corrections in various Rules to conform to this understanding of the authority and obligations of chief bar counsel. Because these proposed changes reinforce the separation of regulatory powers from the trade association aspects of the State Bar, this Court should approve them.
Proposed Rule 49(e), however, grants the Board of Governors additional oversight of the “performance of the disciplinary duties delegated to the chief bar counsel.” Under this proposed rule, the Board of Governors will appoint a committee to review the chief bar counsel and the committee will have the authority “to review individual cases” and make recommendations “regarding bar discipline activities.” This provision thus threatens to give the Board of Governors, through its oversight committee, influence over the chief bar counsel, including in individual cases of discipline. If enacted, this would undermine the wall of separation this Court has erected between the regulatory powers and trade association influence. Because the trade association should not have any influence over regulatory powers, this Court should not approve proposed Rule 49(e).
For the foregoing reasons, I urge the Court to adopt R-18-0014 except for proposed Rule 49(e). The regulatory functions of the State Bar must be kept separate from the trade association functions.
Paul V. Avelar (AZ Bar No. 023078)
Institute for Justice Arizona Office
398 S Mill Avenue Ste 301
Tempe, AZ 85281
Phone: (480) 557-8300
Fax: (480) 557-8305 http://www.ij.org/arizona