By Melanie Deeds
Legal News
The State Bar of Michigan (SBM) recently filed comments in response to the Report of the Michigan Supreme Court Task Force on the Role of the State Bar of Michigan.
While in agreement with many of the recommendations, the organization strongly opposed the suggestion “that State Bar sections engaging in legislative advocacy should do so only through separate entities not identified with the State Bar.”
At the same time, while agreeing that the SBM governance process could benefit from greater clarity and efficiency, the State Bar did not support modification of the organization’s governance as recommended.
The comments were submitted by the State Bar Board of Commissioners upon the Supreme Court’s invitation for public comment. The high court sought input regarding whether the task force report adequately assessed the First Amendment problems concerning required membership in a State Bar association and whether the report provided a sufficient blueprint to ensure that the State Bar’s ideological activities would not encroach on the First Amendment rights of its members.
The comments from the State Bar responded to all of the task force suggestions.
The State Bar agreed with the recommendation that the State Bar of Michigan should remain a mandatory organization.
The State Bar also agreed that State Bar advocacy outside the judicial branch should be subject to a rigorous decision-making process to conform to Keller v. State Bar of California, the constitutional standard for mandatory bar advocacy.
In place of the task force recommendations, the State Bar offered alternatives it said would enhance the current process to further safeguard members’ First Amendment rights and expand opportunities for dissenting members to communicate their opposing views.
In this area, the State Bar response noted that “the State Bar has a responsibility to the public and its dues-paying members to take constitutionally permissible positions on public policy.”
“Lawyers are directly engaged in the administration of justice,” the State Bar comments continued, “and are in a unique position to make policy recommendations to improve the administration of justice.”
“The primary role of the State Bar is to serve the public good, and as it performs this role, it brings to the public the unique perspective that its diverse and democratically elected population of lawyers has with respect to issues of public policy affecting the administration of justice and self-discipline,” the State Bar response said. “Policies and procedures unduly shrinking the universe of germane positions on which the State Bar may voice an opinion would likely come at a cost to the public.”
The State Bar said its recommendations were designed to make the proposed strict interpretation of Keller unnecessary.
With regard to the activities of the State Bar sections, the State Bar response said the SBM “believes any concerns regarding the identification of sections advocating on legislation can be addressed through means less drastic.”
The comments from the SBM Board of Commissioners said the State Bar “firmly opposes requiring sections to form separate entities, for which there is no precedent in any other mandatory state bar.”
“We sympathize with the sections whose councils reject this recommendation as potentially disingenuous,” the comments continued. “The State Bar does not object to additional requirements designed to reduce confusion between Sections and the State Bar,” including the addition of disclaimers on written as well as oral communications on public policy positions.
“If these safeguards are not sufficient,” the comment continued, “the State Bar would support a rule prohibiting Section use of the logo of the State Bar of Michigan on written communications to the Legislature and executive branch on public policy issues.”
Meanwhile, the State Bar agreed with the recommendation that the State Bar’s regulatory services should be better integrated with the activities of the other attorney regulatory agencies.
The State Bar also supported convening a special commission to study the reduction of inactive dues and to examine active and inactive licensing and recertification issues.
The 17-page commentary from the State Bar of Michigan to the Michigan Supreme Court is posted on the SBM website and the Michigan Supreme Court website.
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