When it comes to speaking out on a controversial issue, your bar needs three things: a written policy, a policy that works, and a policy that is flexible.
This was a key takeaway from the National Association of Bar Executives’ 2017 Annual Meeting program “You Say It’s Politics, I Say It’s Public Interest: Navigating the Quicksand of Taking Public Positions.”
Tim Eigo, editor of the State Bar of Arizona’s Arizona Attorney Magazine, moderated the lively discussion in New York this past August. He presented hypothetical situations, all of which he jokingly noted that his co-producer Elizabeth Derrico, associate executive director of the New York State Bar Association, had lived through, for the panel to examine.
Eigo said “different bars have different takes and different stomachs” for each situation, and how each bar handles controversy might inform another bar’s own processes.
Speakers were Leah Johnson, assistant executive director of the South Carolina Bar; Chris Kwok, co-chair of the Issues Committee of the Asian American Bar Association of New York; and Allan Ramsaur, executive director emeritus of the Tennessee Bar Association (and the only EDE at the Annual Meeting, per Eigo).
When sections differ from the association
The first question was, how does a bar leader respond when a section fears that pending state legislation is going to worsen access to justice in your region, but you feel that bill is going to die on its own? Is it appropriate to restrict your section’s speech for strategic reasons—even on a topic that is typically fair game for your bar?
Ramsaur noted that his bar took a “fairly strict line” on these issues with sections and other entities under the overall association umbrella. “We are stronger and more effective when we speak with one voice and one position,” he said, adding that the organization’s voice is stronger if it doesn’t speak “on every little issue that comes along.”
The Tennessee bar’s Government Affairs Committee, made up of lawyer lobbyists, provides him with another sounding board for questions. “It gives us insight into where we might end up,” Ramsaur said. “They don’t make policy, but they tell us what the priorities might be.”
Johnson agreed with Ramsaur that your voice will be diluted if you speak on everything. “You only have so much political capital in any given season,” she said. If you have the right processes in place, Johnson added, “you cannot lose sight of the fact that once a position has been decided, it belongs to the bar.” The official spokesperson for her bar, as at many or most others, is the president or his or her designee.
Kwok, however, countered that he felt “it is sometimes the case for the bar to speak out even if the legislation isn’t going to pass.”
It can also be challenging for bars when two sections have different points of view, but only one is in agreement with the official policy of the bar.
Johnson noted that the South Carolina Bar is a unified bar with lots of interests and that a difference of opinion between sections “happens more than you might think.” But she reminded the audience that, “Ultimately, someone is going to prevail. If the board has sided with the Banking Law Section instead of the Trusts and Estates Law Section, that’s where you go. You have to pick a lane.”
There should not be a dissenting report, Ramsaur believes, nor should members of the dissenting section identify themselves as such in the press.
Judicial elections and elected officials
Can a bar association take a position on judicial elections even if key members disagree?
Kwok said if the local chapter has a position that they want to promote, they should. “A bar association has to be able to [tick] off some of its members,” he added, noting that most members will respect you for standing for something, especially if they believe you reached the decision in a thoughtful manner.
“Do not blanch from a contest of ideas in our democracy,” advised Ramsaur. “That is not what our system is based on.”
What should a bar do when the governor misstates your position in the process, but a piece of legislation that would help your members is awaiting the governor’s signature?
Johnson said that you have a duty to your members to speak up if the governor misstates your position. As for the legislation scenario, it happens all the time. “You have to make a conscious decision to do what’s right,” she said. “That’s the job.” Kwok would recommend that his organization not put out a press release if that legislation was signed, but would accurately state the bar position when asked.
Statements on issues such as the proposed elimination of funding for the Legal Services Corporation can be tricky for bar associations.
Johnson said that the arguments for LSC funding are “not only impassioned; they are real.” She noted that straight talk is very helpful, but dealing with the rhetoric is the more tricky part.
Ramsaur felt that it’s best to focus on the positives with such statements, rather than public denouncements, which are unlikely to be productive. For example, he said, use the example of what happens when people are represented in, say, domestic violence proceedings, rather than what could happen if unrepresented.
The board rules
David Blaner, executive director of the Allegheny County Bar Association and past president of NABE, asked the panel about what to do when boards, particularly at local bars, haven’t taken a position, and many members think they should.
Kwok suggested to have members write down the statement they want first, but have the board even out edges. “The language matters much,” he said.
Johnson advised the audience to fall back on the mission statement and to think of it as the long game. She said to ask yourself, “Can we adequately stay in the grey area? What is the bar there to do?” She recommended using your legal mind to shape arguments, rather than focusing on emotional aspects.
Similarly, if younger members are demanding legislation that would affect loan repayment options, but a more seasoned board doesn’t want to upset legislators, Kwok and Johnson offered practical tips for how to present your findings.
Kwok said to have members bring an analysis to your board with numbers and show them why it’s important to your organization.
In Johnson’s case, her board is well-versed on this issue. She would request an analysis and do a little prep time with the member about how to present to the board. “That can go a long way with the board,” she said.
**This article first appeared in the September/October issue of Bar Leader, a publication of the American Bar Association, and is reposted with permission.