Opinion: Unified Bar Would Fragment The Profession

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

The Law Tribune's Editorial Board has now written two editorials suggesting that Connecticut switch to a unified bar. That's a really bad idea.

I started studying this issue when I was Connecticut's chief disciplinary counsel because I wondered if there might be a better way to organize, regulate and administer the legal profession. In unified bar states, which are slightly more than half nationally, and exactly half of the New England states, membership in the "bar" is mandatory. The bar takes care of admission, regulation and discipline. Bar dues pay the cost.

In the rest of the states, the regulation of the profession is done by the judicial branch. In those states, "voluntary" bar associations serve other functions, such as advocacy, education, advancement of social and political agendas and CLE.They also serveas a platform for special interest groups, such as affinity and specialty bars.

When I was disciplinary counsel, we got a lot of calls from the public, lawyers from other states, and even some Connecticut lawyers, who were understandably confused when they called the Connecticut Bar Association about such things as the client security fund, lawyer registration, pro hac vice admission, bar examination, authorized house counsel, grievances, advertising, certificates of good standing, retirement, and the myriad other functions that the Judicial Branch takes care of. I had to explain the difference between the "small b" bar and the "big B" bar. Everyone belongs to the small "b" bar, only those who care about the profession join the big "B" bar.

In many respects, the regulatory and administrative regimes are the same, big or small "b." One big difference is that after a case called Keller v. California Bar, where the U.S. Supreme Court held that mandatory bars could not use members' dues for political or social purposes (such as promoting diversity and legislative advocacy), voluntary bars can be a lot more vocal and nimble. They can take positions on hot-button social issues. They can file amicus briefs in important cases. And if they think the judicial branch is doing something that will not be good for the lawyers, they can speak out on the subject.

Is one system better than the other? I suppose they both have plusses and minuses, but according to the American Bar Association, the few states that have addressed the question recently have all been mandatory bars moving towards the voluntary model. No one has gone the other way.

Now there is another model of mandatory bar that is gaining traction in other common law countries such as Australia and England, and that is regulation of the bar by the "government," i.e., the executive branch. This is an interesting trend, and may reflect the fact that many lawyers work in areas such as mergers, finance, banking and business that are foreign to judges. I believe the thinking is that governmental regulation might be a better model. If I have it right, some of the regulators are not even lawyers.

I guess we could try that, and put bar regulation in with the Commissioner of Consumer Protection, along with insurance professionals, real estate salespersons, accountants, plumbers, electricians and hair braiders. That would be funny. They all seem to have mandatory continuing education, including, according to a plumber friend, ethics. In Connecticut, the "big B" bar recently asked the Judicial Branch for mandatory continuing legal education and were told no.

So what might happen if we did away with the big, umbrella state "Bar"? Well, say goodbye to legislative advocacy on such things as access to justice, fair regulations for social programs such as Title XIX, family law concerns, the problems of the elderly and the many other issues the Bar pushes for its members and their clients. Specialty practice groups would move to other voluntary bars, such as the regional and metro bars or the trial, civil and criminal defense bar organizations. CLE would be done by others. CLE is not a cash cow. It is pretty much a break-even for some bars and a "loss leader" for most others. It would not take the Connecticut Judicial Branch five minutes to cut this time sink adrift.

The bottom line is that no one who has looked at the facts really thinks a mandatory bar is the wave of the future. It is, however, a way to destroy the "Bar" as a social and political force, to fragment the collective voice of practicing lawyers, and to rid the government of a powerful moderating influence.

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