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ABA President: Regulation threat to lawyer independence

Thursday, April 09, 2009

OKLAHOMA CITY - Mandatory state bar associations must walk a fine line in dealing with state legislatures, but clearly there are issues for which bar groups should lobby, such as adequate funding for the courts, American Bar Association President H. Thomas Wells Jr. said Wednesday in Oklahoma City.

Wells addressed an effort this legislative session to make payment of Oklahoma Bar Association dues voluntary, because the OBA may lobby on issues with which some members disagree.

He said that increased regulation of attorneys is a threat to lawyer independence, because sometimes, "regulation becomes overregulation."

"The issue of interference with the bar association, whether it's the legislative or executive branches of state government, are a bit like weeds in a garden," he said. "They pop up here or there, whether you want them to or not."

Wells said he always tries to point out the interrelationship between an independent bar and a fair and impartial judiciary.

"In my view, things like that, like additional state regulation of lawyers, is a threat to lawyer independence, because one of the primary functions of lawyers is to stand up to government and hold government accountable to the rule of law," he said. "At some point, regulation becomes overregulation, because if lawyers can no longer stand up to the government, then you end up with the situation, like in some places in Russia, where you hear about 'telephone justice.'"

Wells said that refers to the situation that exists in some places in that country, where after a judge hears a case, he must call government officials to ask how they want him to decide a particular matter.

Wells said the bar association in his home state of Alabama is lobbying on judicial selection issues.

The ABA itself is a voluntary association, which, Wells said, may lobby on more than 100 issues in any given year, issues on which its House of Delegates has adopted policies.

For example, Wells said the ABA is proud to have played a key part in securing a $40 million increase in funding over the past year for the Legal Services Corporation, which funds groups that provide legal help for low-income individuals.

The ABA has scheduled a summit in May on the issue of fair and impartial state courts, which Wells said came about during his travels as president-elect, listening to concerns raised by bar leaders, judges and lawyers.

"It occurred to me that the one theme that was coming back is, to one level or another, they were all threats to fair and impartial state courts," Wells said.

He said those concerns ranged from what he termed a "jail for judges" initiative on the ballot in South Dakota to a Colorado initiative that would have severely term-limited judges and efforts in other states aimed at the way judges are selected.

Wells said a key threat to the judiciary, which was almost universal in his meetings, was the negative effects of inadequate funding of the courts.

"So, a good portion of our summit is going to talk about inter-branch relations, among the branches of state government," he said.

Wells said it is more important than ever to be able to explain the importance of the courts and their existence as a third branch of government, with fewer state governors and legislators coming from the legal profession.

"On both the civil and the criminal sides, if you don't give them adequate resources to do their job, we're going to have a hard time delivering the rule of law that the American people have come to expect," he said.

Wells was in Oklahoma Wednesday visiting with legal groups, including Legal Aid Services of Oklahoma, to discuss issues facing attorneys across the country. He has been traveling the country speaking with state and local bar groups since his year as president-elect.

"It's always informative," he said. "I always learn something."

Wells said he tries to include a visit with local legal aid providers wherever he goes and to stress the importance of the work they do.

"Obviously, access to justice is one of the real core values, I think, of the legal profession," he said. "In these economic times, it's even more important than ever."

Wells said people have more legal problems during the recession, although resources to address them are less.

"It's more than just problem solving," he said of legal aid's work. "A lot of times, it's problem avoiding."

During hard economic times, Wells said, people may first need a financial intervention, which can help keep them from spiraling down into needing more and more government services.

"It really is a financial savings, not just for the individual involved, but for society as a whole, if we can get a lawyer involved in a situation earlier rather than later," he said.

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