Michigan buoyed by California vote

by Thomas Kienbaum

California lawyers delivered an unmistakable message of support for a strong and independent bar when 65 percent voted in favor of retaining its mandatory status. If California lawyers had voted to abolish the unified bar, they would have voted to increase the power of external forces to regulate their profession. Apparently some members of the California legislature looked forward to that opportunity, and they were not alone, as we see increased legislative attempts nationally to encroach upon the independence of the profession.

This past year, we in Michigan have been confronted with legislative initiatives that would:

• Do away with lawyer licensing altogether, thus opening the profession to anyone, no matter how unqualified, who wishes to "practice law";
• Alter or eliminate contingency fee agreements; and
• Permit landlords to designate real estate management companies that would in effect practice law without a license.

These initiatives failed, thanks in part to our friends in the legislature who understood and accepted our arguments against such legislation. Those arguments were carried to the legislature by a respected and effective voice -- the State Bar of Michigan.

Such legislative initiatives are not unique to Michigan. The Florida Bar, another large unified bar, rebuffed two notable threats during the just completed legislative session. The first involved an effort of the House Appropriations Committee to gain control over the budgets of the bar and its foundation. The second involved a proposed constitutional amendment to remove the bar from the Florida Supreme Court's jurisdiction and place it under a state licensing department controlled by the legislature.

There was nothing subtle about either the Florida or California efforts. While they may have been more extreme than those thus far in Michigan, the message is clear: Our independence is under increased scrutiny and may soon come under attack.

When legislative efforts to regulate our profession are first made, the state Supreme Court can defuse the situation through prompt action. For instance, when legislative concerns about legal fee excesses arose, the court could have requested a timely review of the subject and then ordered changes where warranted.

Similarly, the court could, and should, act when a meritorious legislative effort which impermissibly purports to regulate the profession is made. For instance, a court rule that would suspend a lawyer's license for nonpayment of child support would address the legislature's legitimate concerns while reaffirming the court's exclusive power to regulate. A rule prohibiting solicitation that parallels a statutory provision made applicable to all other professions would have the same result.

Our court is understandably most comfortable in its historic role as final arbiter of disputes, but today's environment, in Michigan and throughout the nation, does not permit the luxury of avoiding the legislative fray. The debate over court reform has made it clear that the court must be engaged in a process that so impacts its vital interests. The State Bar of Michigan similarly must be vigilant about those matters affecting its independence and affirm the importance of exclusive regulation by the Michigan Supreme Court. The bottom line is that the State Bar must use its historic strength in support of the Supreme Court, and the Supreme Court should in turn empower the State Bar by keeping it strong and independent.

The relationship between a strong unified bar, and the maintenance of independence except for supervision by our court, must always be a central focus of the debate whether the 32 unified bars in the nation should continue or become voluntary.

Thomas C. Kienbaum is president of the State Bar of Michigan. This article is adapted from the original which appeared in the Michigan Bar Journal.