ASKED & ANSWERED: Janet Welch on voluntary State Bar membership

By Steve Thorpe

Legal News

Sen. Arlan Meekhof, R-West Olive, introduced Senate Bill 743 in the legislature on Jan. 23 that would make State Bar of Michigan membership voluntary. The bill says that SBM membership should be individuals who are licensed to practice law in Michigan and who "elect" to join. It also says an individual "is not required to pay a periodic fee for continued membership in the State Bar." Janet K. Welch is the Executive Director of the State Bar of Michigan.

Thorpe: What would be some of the biggest changes in Michigan if bar membership were to become optional?

Welch: In both mandatory and voluntary states, lawyers are required to pay for regulatory functions; in some voluntary states as much or more in fees than lawyers pay in mandatory bar states. But there are several key differences.

First, in voluntary bar states lawyers don't have a voice in setting the licensing fees and in how lawyers are regulated.

Second, lawyers must separately join a bar association and pay bar dues in order to obtain the benefits of bar membership -- practice aids and discounts like the eJournal and Casemaker, section involvement, networking, ethics assistance, Lawyers and Judges Assistance, etc.

Third, although voluntary state bars can and do offer great programs, the quality and range of services to the public is typically far greater in mandatory bar states -- access to justice, protection from unlicensed or unethical legal service providers, and lawyer involvement in improvements on court rules and the laws affecting the system of justice.

I think the history of the State Bar of Michigan shows that there is an intangible value to an institution whose membership consists of all the officers of the court within the state, creating a place where members with widely varying world views can interact on how to safeguard, advance and apply the values of our profession.

In my view, our most valuable contributions to the advancement of Michigan's legal system -- the drafting of the Revised Judicature Act itself, the Estates and Protected Individuals Code, indigent criminal defense reform, the Judicial Crossroads Taskforce Report -- have been possible only because the State Bar structurally and philosophically encompasses all points of view within Michigan's legal profession.

Thorpe: State Bar of Michigan President Brian Einhorn reportedly said recently that the proposal ignores the benefits that Michigan attorneys and citizens get from a mandatory bar. Examples?

Welch: First I need to say that the State Bar cannot adopt a position on the bill until 14 days after notice has been posted on the State Bar website, in this case until Feb. 6, and until that happens I cannot comment on this particular bill. But I refer the reader to the answer to the first question, which refers to the value the State Bar gives to members and the public, for dues below the national average -- and at no cost to taxpayers.

Thorpe: Sen. Meekhof has said that it is not his intent to harm the attorney discipline process or the client protection fund. Is it possible to make bar membership optional and preserve those functions?

Welch: Yes. All voluntary bar states have disciplinary mechanisms and some form of client protection fund, but the services that the State Bar of Michigan provides to support the discipline system and protect the public are not part of voluntary bar state disciplinary structure, and attorney self-regulation plays no role.

Thorpe: The bar monitors practice in Michigan by out of state attorneys. How would that role be affected by a change in the bar's status?

Welch: All states, whether mandatory or voluntary bar states, monitor practice by out of state attorneys in some fashion.

Thorpe: How do other states handle bar membership? Are there many states where it's optional?

Welch: Thirty-two states have mandatory state bars, while 18 license the practice of law administratively without requiring bar association membership. In no state is the practice of law entirely unregulated.

Thorpe: Some attorneys have said that the bill is political retaliation for the bar's position on so-called "dark money" in judicial campaigns. How did judicial transparency become a political issue instead of an ethics issue?

Welch: I cannot comment on the motivation for the bill, but from the point of view of the bar, transparency in judicial campaign ad funding was never a political issue. If we had considered it a political issue we would not have taken a position.

Published: Thu, Feb 6, 2014