Big Brother and bar associations

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Published on 3/15/10

Some months ago, in response to a reader’s inquiry, I came across two interesting statistics. The Massachusetts Bar Association’s Journalist’s Handbook describes the MBA as “one of the largest voluntary bar associations in the United States,” and the MBA website’s “Fast Facts” says the organization has some 14,000 members statewide.

Yet the FY 2009 Board of Bar Overseers report says that there were 53,004 active registered lawyers in Massachusetts in 2009. The conclusion is that many Massachusetts lawyers choose not to belong to their state bar, a pattern seen in most states with voluntary membership. The question is, why?

Lawyers are well aware of how much money their firms spend on bar association dues every year, whether for mandatory or voluntary membership. For many years, bar associations have contended that they have two purposes: to serve and advance the interests of their member lawyers and to protect the public.

In recent years, the perception has grown among lawyers that bar associations are simply licensing agencies that provide little benefit to attorneys and primarily serve as public advocates. Time and again, in creating new requirements to carry out such advocacy, bar associations impose a major financial hit on the majority of bar association members — solos and small firms — who least can afford it.

Consider the situation in my home state of California (a mandatory bar membership state), where the state bar has more than 216,000 members (and 160,000 on active status). California is often considered a trendsetter in legal matters. Under the guise of “protecting the public,” our state bar recently imposed on its members the following, most of which will significantly impact sole practitioners:

  • Mandatory continuing legal education requirements of 25 hours every three years, with a variety of course requirements (but not including practice management and specifically excluding marketing and profitability);
  • Mandatory written disclosure to clients if a lawyer does not have errors and omissions insurance coverage (without any effort to make malpractice insurance affordable);
  • Mandatory legal representation in criminal matters in which the defendant cannot afford a lawyer, with proposed mandatory representation in selected civil matters — a lawyer can be conscripted to serve without fee or nominal fee;
  • A new rule of professional conduct and new penal code section making it illegal for lawyers to charge and accept an advance retainer in matters involving single-family residence loan modifications (even if the retainer is deposited in a client’s trust account);
  • A new proposal that would compel lawyers to have an “estate plan for his/her law practice” providing for succession in the event of a lawyer’s death or disability — ostensibly to protect the client, but, in effect, economically impacting only the solo practitioner;
  • A convoluted new version of a simple, straightforward rule of professional conduct (which has existed since 1989 without any adverse interpretation or litigation) that allows for the sale of a sole practitioner’s law practice.

There may be benefits from all these measures, but the benefits are outweighed by the financial burdens that they impose on the solo and small-firm lawyers who can least afford them. And there usually are less onerous, but politically more challenging, alternatives available.

The ostensible purpose is client protection, but at some point it will become too expensive for the sole practitioner to exist, and the many clients who are served only by sole practitioners will be disserved, if not deserted altogether.

The cry for protecting under-served citizens rings hollow when the lawyer who serves them is the target of the bar association. Let attorneys provide effective legal care without Big Brother bar associations making the job harder.

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