TABLE OF CONTENTS Summary of Recommendations .................................................................................................................... 1 Background ................................................................................................................................................... 2 Task Force Work ........................................................................................................................................... 2 Recommendations ......................................................................................................................................... 5 Mandatory versus Voluntary ......................................................................................................................... 5 Recommendation 1: Continue the State Bar as a Mandatory Bar. ........................................................... 5 First Amendment Issues ................................................................................................................................ 6 Recommendation 2. Provide better protection of the First Amendment rights of State Bar members through more rigorous processes and a new Supreme Court administrative order. ................................. 7 Governmental Relations Program Recommendations ..................................................................... 7 Section Advocacy Recommendations ............................................................................................ 13 Justice Initiatives Program Recommendation ................................................................................ 14 Regulatory Role of the State Bar ................................................................................................................ 15 Recommendation 3. Provide better State Bar integration with the activities of the other attorney regulatory agencies. ................................................................................................................................ 15 Governance ................................................................................................................................................. 16 Recommendation 4. Modify State Bar governance for greater clarity and efficiency. ......................... 16 Other ........................................................................................................................................................... 17 Recommendation 5. Reduce inactive dues and convene a special commission to examine active and inactive licensing, pro hac vice, and recertification issues. .................................................................... 17 Submittal ..................................................................................................................................................... 17 Appendices .................................................................................................................................................. 18 Appendix I Enabling Statute and Court Rules Appendix II State Bar of Michigan Letter to the Michigan Supreme Court Appendix III Administrative Order 2014-5 i Appendix IV Administrative Orders on State Bar First Amendment Issues Appendix V Relevant Case Law Appendix VI Summary of Other Mandatory State Bar Keller Responses Appendix VII Proposed Changes to State Bar Rules Submitted by the Board of Commissioners ii REPORT TO THE MICHIGAN SUPREME COURT TASK FORCE ON THE ROLE OF THE STATE BAR OF MICHIGAN Summary of Recommendations Recommendation 1. The State Bar of Michigan should remain a mandatory state bar. Recommendation 2. To better protect State Bar members’ First Amendment rights: • All State Bar advocacy outside the judicial branch should be subject to a rigorous Keller process and the State Bar should emphasize a strict interpretation of Keller • Funding of Justice Initiatives activities should be subject to a formal Keller review during the annual budget process • State Bar Sections that engage in legislative advocacy should do so only through separate entities not identified with the State Bar. Recommendation 3. The State Bar’s regulatory services should be better integrated with the activities of the other attorney regulatory agencies. Recommendation 4. Governance of the State Bar through the Representative Assembly and the Board of Commissioners should be modified. Recommendation 5. Membership dues for inactive State Bar members should be reduced, inactive member reinstatement should be made more accessible and rational, and the Supreme Court should convene a special commission to review active and inactive licensing, pro hac vice, and recertification issues. 1 BACKGROUND The State Bar of Michigan was created in 1935 as a mandatory bar association.1 On January 23, 2014, Senate Bill 743 was introduced in the Michigan Senate to make membership in the State Bar of Michigan voluntary. On February 6, 2014, the State Bar requested the Supreme Court to initiate a review of how the State Bar operates within the framework of the United States Supreme Court’s decision in Keller v State Bar of California, 496 US 1; 100 SCt 2228; 110 LEd 2d 1 (1990), (hereafter Keller).2 On February 13, 2014, the Supreme Court entered Administrative Order 2014-53 establishing the Task Force on the Role of the State Bar of Michigan. TASK FORCE WORK Meetings In the 74 working days between the issuance of the administrative order establishing the Task Force and the June 2 deadline for the submission of the report, the Task Force held one organizational teleconference and 10 in-person meetings. Outreach The Task Force solicited input from members of the State Bar through an email to each member of the State Bar who has an email address on file with the State Bar: 515 members responded with written comments. State Bar members were also advised by individual email of a public hearing on the issues, and notice to the public was posted. During an all-day hearing at the Hall of Justice on May 2, the Task Force heard testimony from 27 speakers. Of the written and public hearing comments, a clear majority supported the continuation of the mandatory state bar. The Task Force also received unsolicited comments from State Bar Sections and local and affinity bar associations, all supporting continuation of the mandatory State Bar.4 Materials Reviewed First Amendment Jurisprudence. The Task Force reviewed the history of First Amendment challenges against the State Bar, with particular attention to Falk v State Bar of Michigan, 411 Mich 63; 305 NW2d 201 (1981) and 418 Mich 270; 342 NW2d 504 (1983) (hereafter Falk); 1 See Appendix I for enabling statute, accompanying court rules, and the current statute and court rules. 2 See Appendix II for the State Bar letter. 3 See Appendix III for AO 2014-5. 4 Local and affinity bars: Calhoun County Bar Association, Grand Rapids Bar Association, Grand Traverse-Leelanau-Antrim Bar Association, Michigan Retired Judges Association, Oakland County Bar Association, Women Lawyers Association. Sections: Alternate Dispute Resolution Section, Criminal Law Section, Health Care Law Section, Masters Law Section, and Negligence Law Section. 2 Keller; the administrative orders issued by our Supreme Court in response to those cases;5 and other pertinent U.S. Supreme Court and federal appellate opinions issued after Keller.6 State Bar Information. To understand the scope and detail of the State Bar’s current operations, the Task Force reviewed: the 2012-13 Annual Report of the State Bar of Michigan; detailed descriptions on the State Bar’s programs; the State Bar’s interaction with the other Michigan attorney regulatory agencies; and the procedures for compliance with Supreme Court administrative order 2004-1 (the Michigan Supreme Court’s current Keller order). The Task Force also reviewed historical documents, including the report of the Committee on State Bar Activities appointed in January to report to Michigan Supreme Court in 1984, included in Appendix IV. Other Mandatory State Bars. The Task Force reviewed primary source material on the policies and procedures relevant to Keller of the 31 other mandatory state bars.7 Board of Commissioners’ Proposed Changes to Supreme Court Rules. The Task Force received rule changes proposed by the State Bar Board of Commissioners at the Board’s April 25 meeting.8 Comments from the Representative Assembly of the State Bar. The Task Force received comments on the role of the State Bar and of the Representative Assembly compiled from the meeting of the Representative Assembly on April 26, 2014.9 State Bar Programs. The Task Force reviewed all of the State Bar programs, identified below in 15 categories. Some categories include activities that are wholly supported by non-mandatory dues revenue. 1. State Bar Governance. Operate and support the 31 member Board of Commissioners and the 150-member Representative Assembly. 2. Governmental Relations. Analyze and support the development of public policies concerning the legal profession, the provision of legal services, and the courts, including non-lobbying public policy support for State Bar Sections. Provide State Bar member education and advocacy on court rules and legislation within the constraints of AO 2004- 1 (Keller). 3. Outreach, Committees, Sections and Local and Affinity Bars. Operate and support the State Bar committee infrastructure; develop and coordinate services to Sections; and build relations with, develop resources for, and support the work of local and affinity