Lawyer Stuff

Even though I am a practicing attorney, I try to refrain from posting items of interest primarily to lawyers. Sometimes, though, an issue irritates me to the point where I need to take the cathartic step of writing about it here.


The State Bar of Montana recently adopted a resolution relating to the Guantanamo Bay detention camp. I am not going to debate whether the camp should or should not have been created, whether prisoners there should have Constitutional Rights, or any of the endless other substantive issues about Guantanamo Bay, other than to point out what I used to think was fairly obvious: there are many different points of view related to a camp where we hold people prisoner, at least some of whom would like to destroy our country. (Comments relating to the substantive issue will be ignored, deleted or locked. I have too much to do right now besides host a left-wing, right-wing flame war.)


Before I talk about Guantanamo Bay, though, a little background about our Bar Association here in Montana. Titled the State Bar of Montana, "[m]embership in the State Bar of Montana is a condition to practicing law in this state. Non-payment of membership dues and assessments shall result in suspension of membership and the right to practice law until payment of all dues, assessments and penalties in the manner provided in the by-laws." (165 Mont. 1, 530 P.2d 765) In other words, I am required to be a member of this organization, or I must forego my livelihood.


Imagine my dismay, then, when I read this article from the Missoulian. "The State Bar of Montana passed a resolution on Friday urging President George W. Bush and Congress to close the detention camp at Guantanamo Bay and restore prisoners' right to due process." According to the reporter, the "resolution received overwhelming support from Montana's legal community." That statement demonstrates the reporters ignorance about the practice of law in this state.


It is, frankly, impossible to draw conclusions about "Montana's legal community" by sampling the attendees at the Bar's annual convention. I would suggest that the vast majority of Montana's lawyers do not attend the convention, and of those that do attend, we have no idea how many actually showed up to vote on Mr. Taylor's resolution.


But why, in the first instance, should a State Bar Association even take a position on such a matter? Isn't this a political matter? “I don't think this organization is the proper tribunal to determine these issues,” said Ward Shanahan, a Helena attorney. “I object to making a judgment on behalf of the entire Bar of Montana.” Good point, right?


Yes, and I think the Montana Supreme Court would agree. I did a little research. I came across the case of Reynolds v. State Bar of Montana, 660 P.2d 581 (1983). Justice Shea's observations, while related to lobbying, could serve as a reminder to present members of the Bar Association: "What has happened here is illustrative of the heavy powers which are assumed by organizations without involving all of its members in the democratic decision making process. It would be repugnant to me to have my compelled membership dues used in lobbying activities for which I may be strongly opposed. And that is precisely why the lawsuit was filed, the Montana Bar Association simply undertook lobbying activities with the use of compulsory membership dues, without ever thinking that they should consider the rights of those members who may disagree with those lobbying activities.

Although lobbying activities are a valuable and perhaps even laudable activity of the bar, the officers should not have undertaken lobbying activities without first considering the rights of those members who either disagreed in principle to any lobbying activity, or who disagreed with certain lobbying activities of the bar. The officers should first have set up some formula for remitting fees to lawyers who did not approve of the lobbying activities."

But no. Adopting the preeminent tactic of some on the left (see global warming, et. al.) advocates of the resolution decided that the best argument is that your opponent has no argument.


'This is not a political issue,' said advocates of the resolution, 'because we're right. There is no proper opposition to our position.'


Call me paranoid, but whenever people are so absolutely positive about the righteousness of their own positions...well, I get nervous. I'm pretty sure we get admitted to the practice of law, not anointed.


Anyway, I will be attending next year's meeting. And I already have my outfit picked out.

(Hat Tip: Missoulapolis)