The thing about the re-regulation of the practice of law …

. . . is it really could go either way. It could make things better or it could make things worse. It truly depends on who ends up doing the re-regulation and what motivates them along the way.

What is prompting the need to say this sentiment out loud today exactly? Well, cynical types might say it is because there are these two things I want to write about and maybe it is the only thing they have in common. Less cynical types might say … well pretty much the same thing.

It also might come from the general feeling, shared by lots of folks out there I believe, that so many things in life sit on a knife’s edge at the moment and, depending on lots of variables, could pivot in one direction and start to get better or another direction and get even worse.

Recently, we revisited the state of things on the general topic of re-regulation to note that the Utah Supreme Court actually pulled the trigger on creating their regulatory sandbox to allow lawyers and others to collaborate more closely in the delivery of legal services. Frequent readers of this space will know that, in the past, posts about the happenings in Utah have always been in close proximity to the happenings in Arizona and will not be surprised to know it has happened again.

The Arizona Supreme Court has once again jumped ahead of Utah’s trailblazing by simply eradicating RPC 5.4 altogether (as well as eradicating any restrictions on solicitation by lawyers in the advertising rules) effective January 1, 2021. No sandbox or limited experiment, just full steam ahead.

My initial belief (which will also come as no surprise to readers) is that this is and will be a good thing for consumers of legal services. But there is no guarantee that it will be. Much will depend on who takes advantage of the changes. If Arizona sees an influx of interest by investors into lawyers and law firms that represent consumers, then the needle will almost undoubtedly move in the direction of greater access to both information about the availability of legal services and access to meaningful justice. If Arizona instead sees growth mainly in the delivery of business services or expansion by large accounting and consulting firms into the practice of law and outside investment in lawyers and law firms that defend wealthy clients, then things could actually get worse in terms of the balance between the haves and the have-nots.

The battle for the re-regulation of the practice of law, however, will not be fought only in changes to ethics rules that govern those who actually already have become lawyers. It will also be fought over how those who wish to become lawyers are evaluated before being admitted to practice. In terms of evaluation, I do mean both from an intellectual preparedness standpoint but also on the topic of character and fitness to be a lawyer.

As to the first, there are many, many stories to be read on the internet these days about the difficulties facing states all over the country in how to deal with bar examinations for law school graduates as we, as a nation, still struggle with COVID-19. Unfortunately, less than a handful states so far have pivoted to granting diploma privilege to the graduates caught in this professional limbo. Fortunately, only a few states insisted on simply plowing forward with in-person examinations. All of the other states have engaged in experiments in trying to deliver online examinations. The results have been mixed at best. (With luck I will have a bit more to say on this topic later today, but only over on Twitter so hit me up with a follow @bsfaughnan over there.)

As to the second, the process of evaluating the character and fitness of those who aspire to be lawyers is a significantly less-than-perfect process. The fact that the same process is also applied to lawyers who seek additional licenses from other state bars further reveals its flaws. That it is a process that often improperly seeks to force aspiring lawyers to provide information about receiving treatment for mental health unrelated to questionable conduct further invites strong criticism.

This week in an opinion out of federal court in Kentucky a judge managed to simultaneously strongly call out that state’s problematic and invasive approach in a way that is nearly impossible to disagree with on the merits but also to provide evidence that the ABA was correct when it concluded that he was not fit for the federal bench in the first place. The opinion is a particularly bittersweet ride given that, effective today, the judge in question is now being elevated to a set on the U.S. Court of Appeals for the D.C. Circuit. (As to the appellate position, the ABA has concluded that he is qualified.)

If you’d like the short version of the opinion in question, you can check out this ABA Journal online article. A full copy of the opinion, however, can be obtained at the download button below.

In the opinion, the judge absolutely savages how Kentucky treats applicants for licensure and does so in circumstances involving a lawyer who had practiced, without incident, for many years in Florida before seeking to add a Kentucky license to her tool belt. The judge particularly focuses upon the invasive nature of Kentucky’s demands for disclosures about treatment for mental health conditions, demands unbounded by any relationship to any prior inappropriate conduct or any effort by the lawyer-applicant to explain such conduct as being caused by some prior untreated condition.

In the strongest and most emotionally charged language that tends to resonate with those of us who strongly believe that mental health issues in the profession need to be de-stigmatized, the judge closes his opinion out as follows:

Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him — as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.

The entire opinion, in fact, is filled with this kind of simple language that is compelling and easy for lawyers to understand. But 90% of the 18-page opinion is all dicta because the judge actually disposed of the lawsuit filed by the lawyer because they had now finally become a lawyer and no longer had standing to challenge the process they went through when they were an applicant. Only an applicant would have standing to bring the kinds of claims being sought – and, perhaps, not even then because of immunity issues associated with the decision-makers. It could have been a straightforward, nondescript, three- or four-page opinion.

Thus, what the opinion really reads like is an attack on what the judge “tags” as the “Bar Bureaucracy” and drips with the vindictiveness of someone whose credentials were challenged by the largest national association of lawyers in the United States, the ABA.

As someone who believes, on the facts laid out in the opinion, that the Florida lawyer was poorly treated by the Kentucky approach to such issues, reading the opinion is still a highly bittersweet experience. (A bit like watching a shark attack even your worst enemy — something you can’t take any pleasure in because at any point the shark might turn its attention to tearing into you.)

This is particularly true when you bear in mind that this judge – like many that have been installed on the federal courts during the last 4 years and that are career-long members of The Federalist Society — appears to have a very likely overall agenda that is not centered in the kind of empathy that he now expresses over issues of mental health in the legal profession.

Instead, this is a judge whose other prominent decisions during his short-lived tenure include attacking a mayor in Kentucky who was trying to deal with the pandemic as having “criminalized the communal celebration of Easter.” He is also a judge who, if given the opportunity, is likely to vote to strike down the Affordable Care Act and strip healthcare from millions in the middle of a pandemic. He is a judge in a mold of judges who will decry all that they do not like as “judicial activism,” but blithely engage in the kind of judicial activism that involves writing a scolding and self-righteous decision nearly 90% of which was unnecessary as dicta.

If the landscape surrounding entry into the practice of law is shaped and re-regulated by the kinds of judges that have been enshrined into power over this last Presidential term of office, then things might improve for the better or they could very well become much worse.

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