In the following study, the authors have considered the purposes and justification for a "unified" bar—which lawyers must join in order to be licensed to practice in Michigan—and whether the citizens of Michigan will be better served by the legal profession if compulsory membership in the state bar association continues. Part I is designed to serve as an introduction to the foundation and structure of the State Bar of Michigan, so that Part II of the report will be understandable to those not familiar with lawyer organizations generally or the State Bar of Michigan in particular.
The State Bar of Michigan was unified in 1937 by virtue of a 1935 statute,1 now codified as §§901-916 of the Revised Judicature Act.2 The act basically declares that all attorneys admitted to the practice of law in Michigan are and shall be members of the State Bar of Michigan, which is to be organized and governed pursuant to rules to be adopted by the Supreme Court of Michigan.
The Michigan Supreme Court has duly adopted Rules Concerning the State Bar of Michigan, which define the organizational structure of the State Bar in general outline, including the number and titles of officers, governing bodies, and parts of the committee structure; fix annual dues; and establish the organization's objectives in broad terms. The Rules also provide ancillary details, such as how lawyers from other states can be allowed to appear and practice pro hac vice,3 and which lawyers, by length of time admitted to practice, are required to participate in mandatory continuing legal education.4 Failure to pay annual dues works as an automatic suspension of the license to practice law.5
Most of the remainder of the rules are permissive; the State Bar may,6 for example, lobby, but it is not mandated to lobby. It is required to maintain only a small number of committees, such as the Judicial Committee, Young Lawyers Section, and Ethics Committee. It is permitted to create other committees¾there are about 50 total, the expenses of which are defrayed from mandatory dues. The State Bar also has interest sections, such as Workers Compensation, Tax, Business Law, and Labor, which are ostensibly funded by membership contributions above and beyond regular dues, but there is a hidden subsidy for overhead items (meeting space, secretarial and bookkeeping support, and access to State Bar facilities, including the Annual Meeting).
The Supreme Court has separately promulgated a code of ethics, the current version of which is known as the Michigan Rules of Professional Conduct. As is common for most states, the Michigan version borrows heavily from the latest code issued by the Ameri-can Bar Association.
A separate chapter of the Michigan Court Rules (of 1985), which are also a product of the Michigan Supreme Court,7 establishes the Attorney Grievance Commission (AGC), Attorney Grievance Administrator (AGA), and Attorney Discipline Board (ADB). The Court Rules also establish the procedural rules that govern these disciplinary organs, which function independently of the State Bar, but are funded by mandatory dues. Members of the AGC and ADB are elected by members of the State Bar except for the chairs of those commissions, who are appointed by the Supreme Court; the AGC in turn hires the AGA, though now with some oversight from the Supreme Court.
The State Bar itself is governed by a Board of Commissioners,8 consisting of 31 members, who hold the real power. The Board of Commissioners meets monthly, elects the President, fixes the budget, and spends the money.9 The secondary governing body is the Representative Assembly,10 consisting of 142 members, which meets twice each year and sets general policy goals.
The commissioners are elected from districts. However, because lawyer democracy yields a dearth of minorities and women, the Michigan Supreme Court about 20 years ago added 5 commissioner positions11 which it fills by appointment with minorities and women. The Representative Assembly is likewise elected from districts, albeit smaller ones, and this tends to produce minority and female representation in numbers sufficient to satisfy the Supreme Court, even though below percentages in the profession and certainly in the general population.
The State Bar uses mandatory dues to pay the expenses of its various operations, including those of its many committees. Among the committees currently operating are 47 standing committees,12 7 sub-committees of the Board of Commissioners,13 and 7 special committees.14 Dues are also used to subsidize the work of the ostensibly independently and voluntarily funded interest sections, such as those for practitioners focusing on worker's compensation, labor law, and domestic relations.
In addition to these groups, there is a captive State Bar Foundation, which uses tax deductible contributions to fund studies of interest to the Board of Commissioners, which has the power to appoint a controlling majority of the Foundation's Board of Directors. Finally, there is LAWPAC (LAWyers Political Action Committee), which, although separate like the Foundation for reasons derived from federal revenue law, solicits contributions through a negative-option check-off on the annual dues notice.
The daily labor of the bar—keeping track of members' names, addresses, telephone numbers, and status; editing and publishing the monthly journal; overseeing the work of the committees and implementing decisions of the Board of Commissioners-is done by a staff consisting of an Executive Director, several staff lawyers, and a lay staff. These employees operate out of a central headquarters in the State capital, strategically located a block from the capitol and two blocks from the Michigan Supreme Court, which is also where the Board of Commissioners and many committees and sections hold their meetings.
11935 PA 58.
2MCL 600.901 et seq.; MSA 27A.901 et seq.
3State Bar Rule 15.2.
4State Bar Rule 17.
5State Bar Rule 4(b).
6As of October 1, 1993, by virtue of Administrative Order 1993-5, 443 Mich xv, the State Bar is now precluded from lobbying generally, but retains authorization to lobby on what for present purposes might be described, by supporters of such activity, as "core" issues for a statutorily universal, all-encompassing bar organization.
7Pursuant to Michigan Const 1963, Art 6 §5, the Supreme Court of Michigan has the sole power to establish rules of practice and procedure for the state's "one court of justice," Mich. Const. 1963, Art 6 §1. The court has broadly interpreted this power as insulating itself from all manner of laws of general application. For example, the State's Open Meetings Act when it acts legislatively to promulgate rules, In re "Sunshine Law," 1976 PA 267, 440 Mich 660; 255 NW2d 635 (1977); the Public Employment Relations Act, which authorizes public em-ployees generally to organize for collective bargaining purposes, but not to strike, In the Matter of the Petition for a Representation Election among Supreme Court Staff Employees, 406 Mich 647; 281 NW2d 299 (1979), modified on rehearsing 406 Mich 690, despite holding that the act applies to lower courts, which ought to be part of the "one court of justice." Teamsters Union Local 214 v 60th District Court, 417 Mich 291; 335 NW2d 470 (1983); and the general election law, including campaign finance reform provisions therein, 1976 PA 388, MCL 168.1 et seq., MSA 6.1001 et seq., In the Matter of Lawrence, 417 Mich 248, 264-265; 335 NW2d 456 (1983). On the other side of the coin, the Court frequently promulgates rules which in no way appear to deal with court practice or procedure, but function as substantive legislation, such as creating the lawyer disciplinary bodies.
8State Bar Rule 5.
9State Bar Rule 9.
10State Bar Rule 6.
11Amendment to the Rules Concerning the State Bar of Michigan, 388 Mich cxlvii (1972).
12Advertising, Certification & Specialization; Annual Meeting Coordinating; Appellate Court Administration, Arbitration of Disputes Among Attorneys; Assigned Counsel Standards; Awards; Character & Fitness; Civil Liberties; Civil Procedure; Client Protection Fund; Communications; Constitutional Law; Consumer Law; Continuing Legal Education; Court Administration; Criminal Jurisprudence; Defender Systems & Services; Ethics; Profes-sional & Judicial; Fiscal; Grievance; Health Care; Insurance Law; Judicial Qualifications; Jury Instructions, Standard Criminal; Law-Related Education; Lawyers and Judges Assis-tance; Lawyers' Professional Liability Insurance; Legal Aid; Legal Education; Delivery of Legal Services; Legislation; Libraries, Legal Research & Publications; Local Bar Liaison; Medicolegal Problems; Membership Services; Mentally Disabled; Military Law; Oil & Gas Law; Prisons & Corrections; Pro Bono Involvement; Professionalism; Scope & Correlation; Senior Justice; State Trial Courts Administration; Unauthorized Practice of Law; United States Courts; Upper Michigan Lawyers. Only the Character & Fitness Committee performs any "official" function, passing on the fitness of applicants for admission to the bar exami-nation.
13Client-Protection Fund—Claims Review; Health Insurance; House; Judiciary; Local Bar Association Review; Nominating; Personnel.
14Criminal Code Revision; Law and the Media; Law Day; Plain English; Tort Law Review; Expansion of Under-Represented Groups in the Law; Victims of Crimes.