Some States Seek Change in How Lawyers Are Regulated

Vesna Jaksic

The National Law Journal

Several states have been considering initiatives to limit judicial powers over such things as overseeing attorney admissions and discipline and determining who should be allowed to sit for the bar exam.

Last year, bills over such issues were introduced in legislatures in Missouri, Montana and Wisconsin. None was enacted, but this year, similar initiatives are already under way in Arizona, South Carolina and Wisconsin.

In South Carolina, a Republican legislator has proposed two bills that aim to take away the state Supreme Court's authority over bar admissions and attorney discipline. Dr. Kristopher "Kris" Crawford, a physician who sits on the state House Judiciary Committee, said a board consisting of mostly lawyers should be created to regulate the profession instead.

"We give the sole authority for the regulation and admission of practice of law to the Supreme Court, which has the fundamental outcome of depriving lawyers of having a self-regulated profession," Crawford said.

In an e-mail statement, the president of the South Carolina Bar called the proposed initiatives "troubling."

"In order to dispense justice under the rule of law, the court system must be independent from outside influences of any kind, including the legislative and executive branches of government," said the Bar's president, Lanneau Wm. Lambert Jr., the managing partner in the Columbia, S.C., office of Turner Padget Graham & Laney.

Similarly, an initiative in Arizona aims to shift the authority over bar licensing and discipline from the state Supreme Court to a legislative commission.

"Most of the professions have their own board, and I guess we'd like to do that with lawyers, too," said Ted King, a retiree who chairs a group called the Committee for the Preservation of Constitutional Government, which is spearheading the initiative. King said he has not been able to get a legislator to introduce the initiative as a bill, so he is trying to collect enough signatures to get it on the November ballot.

Daniel McAuliffe, president of the State Bar of Arizona, said he does not support such efforts.

"It's trying to chip away at the authority of the courts," said McAuliffe, a partner in the Phoenix office of Snell & Wilmer.

In Wisconsin, which has a biannual legislative session, resolutions are still pending from last year that would get rid of the current requirement for attorneys to join the State Bar of Wisconsin and pay dues and an annual $50 fee to help fund indigent defense.

Republican Sheryl Albers proposed the bills in order to start a discussion about whether the state bar should be voluntary, as it briefly was in the 1990s, said her legislative aide, Kurt Simatic. As for the fees for indigent defense, they should be paid by the Legislature, he said.

Thomas J. Basting Sr., the state bar's president and a member of Midwest Mediation LLC in Madison, Wis., said the organization's 50-plus-member board voted against the proposal. It would not only take vital funding away from the state bar but would encroach on the separation of powers, he said.

Last year, several bills aimed at the legal profession never made it through.

In Montana, Republican state Sen. Jerry O'Neil proposed a bill that would have allowed graduates of schools not accredited by the American Bar Association to sit for the bar. O'Neil said he is not sure if he will run again when his term expires at the end of this year, but he hopes someone will re-introduce the bill.

In Missouri, Republican state Rep. Carl Bearden -- who has since resigned -- proposed a bill that would have allowed Legislature members with eight years of experience to take the bar exam.

Rep. Bryan Stevenson, a Republican who chairs the state House Judiciary Committee, said he would oppose any such bills if re-introduced this year.

"I spent three years and hundreds of thousands of dollars going to law school, and I feel it's a very valuable education," he said. "And if you're going to practice law, then you need to go through that process to take the bar."