Failing State Bars Are Deunifying, and That’s Not Necessarily Bad

Large state bars functioning simultaneously as both regulatory agencies and trade associations for their lawyer members continue to face difficulties that threaten to topple their very structure.

It is not overly dramatic to describe these mammoth organizations as literally falling apart. The agencies that we pay each year to keep our licenses to practice law are also who we also turn to for education and lawyer assistance programs, and they are crumbling. California is the latest high-profile example, but the problem is not limited to the Golden State. Michigan, Nebraska, and other states are also dealing with deunification.

There is high drama and a lot of fear when the status quo is threatened, and the process of deunifying is certainly difficult and at times chaotic. Nevertheless, the ultimate result for a bar that is otherwise not functioning effectively is a vast improvement post-deunification.

Structure of a Unified Bar

The terms integrated and unified bars are used to describe organizations that operate as regulatory agencies (administering bar exams, admitting lawyers to practice, and disciplining lawyers) and trade associations (such as offering educational programs and lobbying on behalf of lawyers). Since admission to practice is typically a function of the state’s supreme court, unified bars are usually structured somehow as an arm of the court. For example, in California, the entire State Bar of California is a regulatory arm of the Supreme Court of California.

Structure of a Deunified Bar

Bars that are not integrated or unified are referred to as deunified. This means that the entity that regulates lawyers is not providing education or lobbying or engaging in other non-regulatory activities; a separate voluntary organization handles those functions. In New York, for example, fees for attorney licensing are paid to the Supreme Court Appellate Division. If you want a CLE program or to network with other lawyers, you may join the New York State Bar Association, the Association of the Bar of the City of New York, or another local bar.

Change Is Tough

The logistics of deunification are not simple. In some states, the supreme court has taken action on its own to deunify. In California, a legislative solution is being crafted. Regardless of approach, it is complicated to separate large organizations—just ask any divorce lawyer who has handled a large marital estate.

To get an idea of the issues facing bars during deunification, look at the current debate on crafting legislation to separate the California bar. The legislative solution requires consideration of issues such as:

• How to divide the financial reserves that have been built up by the educational components of the bar;
• How to pay severance packages for employees laid off in the separation (some of whom may be hired  by the new separate organization);
• How to allocate ownership rights to intellectual property created by the education side;
• What sort of entity to create to house the piece of the bar being spun off, and whether that entity should be another government agency or private;
• Who will staff and run the new entity; and
• When all of this should happen.

The same complexity is present in any other bar deunification because these are very large, complex organizations that have been functioning for decades.

In addition to logistics, the emotional and political barriers to deunification are tough to navigate. There is a strong preference for the status quo, despite the failings that lead to deunification. This preference seems to counteract common sense and practical considerations, if California’s process is representative. There, recent legislative enactments and policy changes have made the educational component of the bar incompatible with the regulatory side, yet the education side voted to stay with the bar anyway. That original vote has since been dramatically overridden by continued changes and political decisions outside the control of the education side, but it is instructive to see that even in the face of great difficulty in continuing to operate, people choose the status quo over the unknown of change.

But Change Is Good

Despite resistance to the change, the result of having a voluntary trade association separate from the regulatory agency seems like a good thing. I am a member of two unified bars and two deunified bars, so I do see how they operate differently.

A regulatory agency focused on disciplining attorneys for violating ethics rules is a poor choice for a lobbying body for lawyers. In fact, when your annual bar dues go to lobbying efforts by the state bar, it is unlikely that those efforts support you in your professional life the way you might expect them to. In the world of discipline defense, clients frequently make comments like “but the Bar is supposed to be on my side!” Actually, no it isn’t. The missions of state bar regulatory agencies are typically couched as public protection; in other words, they are designed to protect the public from lawyers, not to protect the lawyers.

Deunifying paves the way for lawyers to have real lobbying organizations, as most state medical associations do. It seems to be a great idea for a massive group of licensed professionals to have an independent lobbying organization.

Separating the bar also gives an opportunity for lawyer assistance programs to be privatized, a point for which I recently advocated here on Lawyerist. An entity charged with prosecuting lawyers who are unable to adequately function due to addiction is not the right entity to help those same lawyers.

Assuming that the voluntary trade association is an independent one and not a government agency, another benefit is the absence of governmental red tape and waste.

Will Educational Programming Suffer?

The one component of a unified bar that may suffer in deunification is education. Integrated state bars typically offer a significant amount of education to members at a lower cost than outside vendors. However, without the restrictions under which governmental education programs labor, it may be that a voluntary bar association can offer equally useful education programs, and the market will set the price at a level that allows lawyers to receive the training they need. Again, it is a change that may be resisted and feared, but even the privatization of the education component is manageable.

Embrace the Trend

Whether you would prefer your state bar be unified or deunified, the choice is beyond your personal control. As more bars face difficulties caused by mismanagement, government waste, or politics, it is likely we will see an ongoing trend toward deunification. Given our lack of individual choice in the matter, it is useful to see the good results that come from separation and embrace the change.

Failing State Bars Are Deunifying, and That’s Not Necessarily Bad was originally published on Lawyerist.com.