OCBA UPDATE: Promoting the interests of the legal profession

By Thomas H. Howlett As we turn the page in November on contested judicial races spanning local district courts, the Oakland County Circuit Court and the Michigan Supreme Court, the outcome of one important, year-long battle impacting our state's justice system remains quite up in the air: the fate of the mandatory State Bar of Michigan. Significant proposed changes relating to how, when and even whether the mandatory state bar can operate in matters of public advocacy await consideration by the Michigan Supreme Court after a year that outgoing state bar President Brian Einhorn wryly described as "interesting" in closing remarks earlier this fall. One stunning question awaiting consideration by the Supreme Court is whether the mandatory state bar should even continue to have as one of its stated purposes "promoting the interests of the legal profession in this state." In a June 2014 report, a 12-person Michigan Supreme Court Task Force on the Role of the State Bar of Michigan recommended deletion of that language from Rule 1 of the Supreme Court's State Bar Rules of Michigan. That proposed change is among several that now may be acted upon by the Supreme Court in connection with its regulation of the mandatory state bar. As the state's largest voluntary bar association, the Oakland County Bar Association awaits no edict. We face no similar risk of modification or limitation of purpose due to votes that may be taken by task force members, legislators or justices. The OCBA's mission as a voluntary membership organization remains clear and unchanged: The OCBA seeks to serve the professional needs of our members, improve the justice system, and ensure the delivery of quality legal services to the public. With chapters of the state bar's evolving story of potential change still to be written after a roiling year of debate, the difficulties that the mandatory state bar has already faced underscore the important role that the OCBA must continue to play in advocating strongly for lawyers and the public in the months and years to come. Indeed, amidst continuing uncertainty about when and how the state bar can speak up on matters of interest to the public and the profession, the OCBA and other voluntary bar associations must be vigilant about advocating locally and in Lansing on issues that matter to the public, to the profession and to the administration of justice. To this end, the OCBA maintains a vibrant and active Legislative Committee co-chaired by OCBA stalwarts Sheldon Larky and Richard Poling Jr. that regularly makes recommendations to the OCBA board on pending legislation that may affect the practice of law and the administration of justice. The OCBA board, in turn, decides whether to communicate positions on pending legislation to the OCBA's lobbying firm, which can be called upon to actively work to support, modify or defeat proposed changes in the law. The OCBA remains the only local bar association in Michigan with a consistent lobbying presence in Lansing. On many issues in years past, the OCBA has often found itself advocating for lawyers and the administration of justice alongside the state bar, including when both organizations successfully opposed a proposed tax on legal services in 2008. But the role the state bar may play in the future in public advocacy is now unclear. Here's a brief recap of how the state bar arrived at the current point of uncertainty as to its future role in advocacy for the profession and the public: In September 2013, two state bar leaders requested that Michigan Secretary of State Ruth Johnson issue an interpretive election law ruling to discontinue anonymous donations to "issue ads" in judicial elections. The well-reasoned letter based on recent Supreme Court developments sought to rid Michigan of the following predicament caused by "issue ads" that do not expressly call for the election of a particular candidate: Michigan judges now potentially adjudicate cases involving undisclosed sponsors or special interests who have favored their election or the defeat of opponents through "issue ads" for which the disclosure of identity of donors has not been required. Secretary Johnson responded to the state bar request limited to judicial elections by issuing a broader interpretive ruling intended to eliminate anonymity in "issue ad" donations in all elections, judicial and otherwise. But in response to this move toward greater transparency, legislation to moot this change was immediately introduced and swiftly enacted and signed into law that sadly codified a place for dark money in Michigan. The Michigan Campaign Finance Act was formally amended last year to allow the identity of donors to so-called "issue ads" in all Michigan elections to remain anonymous. Repercussions to the state bar for its noble effort to improve transparency in judicial elections then followed. In what many perceived as retaliation for the state bar's effort in the realm of dark money, a legislator introduced a bill to end the mandatory status of the state bar. This legislative threat to the existence of the mandatory bar and to the separation of powers regulation of the state bar clearly is within the jurisdiction of our state's judicial branch of government spurred the state bar to ask the Michigan Supreme Court to get involved. In an effort aimed at least in part at heading off legislation ending the state bar's mandatory status, the state bar asked the Supreme Court to assess whether the bar had been operating within the bounds of federal and state precedents that limit, but do not prohibit, advocacy by mandatory bar associations due to the First Amendment rights of potentially objecting members. The Supreme Court responded by creating a 12-member task force charged with addressing, among other things, "whether the State Bar's current programs and activities support its status as a mandatory State Bar" and whether the state bar's duties and functions could be "accomplished by means less intrusive upon the First Amendment rights of objecting individual attorneys." Hundreds of state bar members and others (including the OCBA) submitted comments to the task force, most of them supporting the state bar's current status as a mandatory bar with substantial support for the balance currently set by the state bar as to when, as a mandatory bar, it becomes involved in public advocacy. So it came as a surprise to many last June when the task force issued a report that, while recommending that the state bar remain mandatory, also proposed major limitations to the state bar's advocacy function "to better protect State Bar members' First Amendment rights." Proposing a "reboot" of the rules of state bar advocacy, the task force recommended a new "narrow interpretation" of Supreme Court precedent allowing mandatory bars to engage in public advocacy. The task force expressly favored "a more rigorous standard" for advocacy with safeguards that extend "beyond [those] imposed on any of the mandatory state bars that engage in legislative advocacy." Among the most significant changes proposed by the task force to the Supreme Court as part of this "reboot" were removal of promotion of "the interests of the legal profession" from the Supreme Court rule setting forth the state bar's mission and an end to external advocacy by voluntary sections of the state bar except "through separate entities not identified by the State Bar." As envisioned by the task force, a newly reformed state bar would no longer become involved in public policy issues relating to a tax on legal services, matters of judicial selection or any ballot initiatives, regardless of whether such matters bear on the practice of law or the administration of justice. The task force's recommendations produced a flurry of responses from members of the state bar during an ensuing comment period. In addition to hearing from individual bar members, the Supreme Court received comments from the state bar itself. In its response, the state bar formally disagreed with the task force's proposed change precluding state bar sections from engaging in legislative advocacy. The state bar also responded that rather than "simply striking the language 'promoting the interests of the legal profession'" from the Supreme Court rule setting forth its mission as suggested by the task force, the Supreme Court should change this language to "protecting and improving the quality of legal services in this state." A group of 25 former presidents of the state bar including former OCBA presidents George Googasian, Edward Pappas and Thomas Ryan, and OCBA members Julie Fershtman and Thomas Kienbaum jointly signed a letter to the Supreme Court expressing concerns about the task force report. Among the letter's criticisms were that the task force report "threatens the State Bar's ability to protect the public" and "guts the Bar's ability to advocate on behalf of the profession." On the latter point, this group of former state bar presidents eloquently wrote, "[A]s officers of the Court and guardians of the Rule of Law, lawyers need to be able to speak up as a unified voice when someone takes action that threatens our ability to fulfill our duties and obligations whether that threat comes via proposed Court Rule, or legislation, or ballot initiative, and even if that action 'primarily' benefits lawyers. â?¦ The Supreme Court should not make changes that even suggest a weakening of the State Bar's advocacy on behalf of its members." At present, whether the Supreme Court will end or modify the state bar's traditional role in promoting the interests of the legal profession in particular and in public advocacy in general is not known. What is clear amidst all of this uncertainty is that the OCBA's mission remains steadfast: serving the professional needs of our members, improving the justice system, and ensuring the delivery of quality legal services to the public. And the importance of this mission is all the more apparent now. The OCBA must continue to serve as a clear and reliable advocate for lawyers, the public and the administration of justice at a time when the state bar's public participation in any such debates may be subject to change. -------- Share your thoughts about the OCBA or anything else. Direct line: 248-502-0862. E-mail: thowlett@googasian.com. -------- Thomas H. Howlett, of The Googasian Firm PC, is the 82nd president of the Oakland County Bar Association. Share your thoughts about the OCBA or anything else: direct line 248-502-0862; or e-mail thowlett@googasian.com. Published: Wed, Nov 26, 2014

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