Saturday, February 25, 2017

Is the Wisconsin State Bar’s conflict of interest self-imposed?

The Irreverent Lawyer just wrote about the current bill in Arizona that would turn their bloated and pricey state bar from a mandatory organization into a voluntary one.  One of the problems with these mandatory bars, he explains, is that they have an inherent conflict of interest.  And by separating the lawyer regulation function from the trade association function (in which membership would become voluntary) the conflict of interest disappears.  That is, a voluntary bar, separated from the lawyer regulation function, would no longer be torn between serving the general public and working on behalf of its membership.  But in Wisconsin, the lawyer regulation function (OLR) is already separate from the mandatory bar (although the bar seems to keep its fingers, to some extent, in the lawyer regulation pie).  So given its separation from the OLR, why does the Wisconsin State Bar consistently work with the OLR and against its own membership?  The bar does claim to also work for its dues-paying membership, so it does operate under an obvious conflict of interest.  Yet, given its supposed independence from the OLR, it seems that the Wisconsin State Bar’s conflict of interest is self-imposed.

To begin, here are two examples of the Wisconsin State Bar working against its membership.  First, the bar just issued an ethics opinion (EF-16-03) about its members’ duties with regard to a former client’s file.  The bar says that even if the lawyer diligently provided each and every document to the client during the course of representation (and kept careful records of doing so), if the client again requests the file after the case is over, the lawyer must locate, organize, copy, and again deliver the file to the former client — all at the lawyer’s trouble and expense.  And if the lawyer converted the paper file to an electronic file for ease of storage, he or she may have to re-convert it to a paper file at the client’s request — again, all at the lawyer’s trouble and expense.  And of course, the bar tells us that if the client failed to pay his or her legal fees (a very common occurrence in some fields of law practice), the lawyer may not withhold this second copy of the file in order to “coerce payment of fees.”

I probably wouldn’t even be writing this post except for the Wisconsin State Bar’s highly offensive and ironic use of the word “coerce.”  It is offensive that the bar would characterize a lawyer-member’s attempt to collect an agreed-upon fee as coercion.  It is ironic because our mandatory state bar coerces me pay an incredibly high membership fee in order to practice the profession for which I have studied and trained and even spent many thousands of unpaid hours to improve.  That’s right, unlike the bar’s executive director who gets paid a secret, undisclosed salary for his supposed “service” to the profession, I have been paid exactly zero dollars to research, write, revise, submit, and publish eighteen law review articles advocating for reform of the criminal justice system, the rules of professional conduct, and our system of legal education.  I haven’t asked for praise over the past eleven years that I’ve been publishing, I don’t want any now, and I would be embarrassed to receive it (so please hold your metaphoric applause).  I make this comparison only to demonstrate that labeling a bureaucrat’s highly compensated work as “service” is nearly as offensive as calling a lawyer’s attempt to earn a living “coercion.”

A second and far more serious example of the Wisconsin State Bar working against its membership is its recent opposition to a rules petition to modify ethics rule 1.9.  The petition sought to clarify that we lawyers do, in fact, have a First Amendment right to discuss the public aspects of our closed cases.  For example, we lawyers should be allowed to say: “In my case of State v. Smith, Mr. Smith was charged with battery and was found not guilty at a public jury trial.”  This is a basic constitutional right that other states, such as Virginia, have recognized.  Yet the Wisconsin State Bar joined the OLR and vigorously argued (verbally and in writing) that its dues-paying members must be denied their fundamental right to discuss widely and publicly available information in order to “protect the public.”

The conflict of interest under which the Wisconsin State Bar operates is so thick you could cut it with a knife.  Yet, given that the bar is already separated from the OLR, this conflict seems to be self-imposed.  The bar could work for its membership and advocate for our basic rights, but it chooses not to do so.  Interestingly, however, the cure for what ails us is the same as it is in Arizona: make the bar a voluntary organization.  If the bar couldn’t coerce us to join, it would be forced to focus on its memberships’ interests rather than dreaming up ways to protect the public from nonexistent threats. 

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