More Lawyer Stuff

I posted earlier about the State Bar of Montana's resolution seeking the closure of the Guantanamo Bay detention facility.

I received a response to that post by Joe Sullivan, the Secretary-Treasurer of the State Bar of Montana, and also a member of its Board of Trustees:

The State Bar consists of about 2,500 active members and about 500 retired members. The convention typically sees about 250 member attend. Of that, maybe
fifty to a hundred are present at lunch on Friday for the meeting at which the resolutions are presented, debated, and voted upon.(I confess I was not at this meeting. I had left the convention at 11:00 to ensure I was back to the Great Falls Invitational Cross Country Meeting for the small school girl’s race at 3:00. I took to heart the piece you wrote about giving oneself enough time to make that trip at a safe speed.)

The language of the reporter was poor. The resolution process does not represent the view of the entire membership. It does not even reflect the view of the Bar’s leadership(unless the resolution is generated by the Board of Trustees, which in this case it was not). It represents the majority of the membership who choose to attend the annual meeting(held on the Friday of each annual convention).

I equate the resolution process set forth in our bylaws(approved by the Montana Supreme Court) to the referendum process of many states. It is actually a process that allows individuals or groups to circumvent the legislative body(here the Board of Trustees) if they feel there is a need to do so.

In general, the membership can bypass the Board of Trustees at any Annual Meeting:

At any annual or special meeting of the State Bar of Montana the members present shall constitute a quorum and by a majority vote of those present, may modify or rescind any action or decision of the Board of Trustees...(Article VII of the Bylaws)

Further, the Board of Trustees is required to submit to the
membership:

"...any questions of association policy, including proposed changes in the constitution or by-laws of the association, whenever directed so to do by resolution adopted at any regularly called meeting of the membership by the affirmative vote of a majority of those voting."(Article XIII, Section 2 of the By-laws)

The issue of political action by a state’s bar has been heavily litigated. This has chiefly been based on the following factors. It must be a mandatory bar like the State Bar of Montana. There must be the use of mandatory dues for some political purpose such as paying a lobbyist to push a piece of legislation. The action being taken, such as the piece of legislation, must be of a type where some of the mandatory members take issue.

Under these circumstances most mandatory state bars have an established system if a member complains of the expenditure on an issue he or she disagrees. A percentage is created by dividing the total cost of the lobbying effort by the total annual budget of the bar. The individuals annual dues is then multiplied by that
percentage. The member is then reimbursed that amount.

The State Bar of Montana has such a system. However, I have never seen it used. I believe this is because the Board of Trustees has applied heavier constraints on itself than some other states have. Every time a controversial piece of legislation is before the State Legislature, say one the Plaintiff bar supports and the Defense bar opposes, the Board of Trustees has taken the position they will not support or oppose the bill. The State Bar’s lobbying efforts have been chiefly focused on bills that attempt to take the licensing of lawyers and the control of the practice of law out of the hands of the Supreme Court, bills which attempt to control judicial independence, or bills dealing with similar issues which tend to violate the separation of powers.

I also received a follow up from Mr. Sullivan:

Just some additional facts for you.

I like many of us missed the fact that this resolution was published, as required, in the last addition of the Montana Lawyer. Again, I am embarrassed that I had missed it.

I also learned that the resolution committee had no problem with the general promotion of the right to habeas corpus and other related principles. They did question the more specific issues which addressed a particular administration's policy(and therefore the divisions between political perspectives). However, they found the limitations of their own rules did not allow them to stop the resolution from being presented nor did it allow them to amend the resolution. They did request the author, Jim Taylor, accept a friendly amendment removing the specific parts of the resolution such as the requesting the closure of Guantanamo Bay. He refused because he knew they could not stop him. In the end, they found they had three choices - the resolution could leave committee with the committee's approval, disapproval, or without either. The committee felt that either approval or disapproval would be an endorsement of one political view or the other. Apparently, the first time ever a resolution came out of that committee with neither approval or disapproval. It was left to the membership present to decide(apparently many left right after lunch and only about 20 people remained for the actual vote).

At our Trustees meeting in April we had looked at modifying the rules for the resolution committee in some manner so that they would have more say in a resolution like this, however, the proposal made at that time seemed too strong and looked to have the potential of killing the resolution process altogether. We are currently continuing to review our own rules to see if there is a way to create better guidelines. Right now, attendance at the annual business meeting is still the best method to have a say.

Thanks, Joe, for helping shed some light on this issue.