"The State Bar of Michigan is the association of the members of the bar of this state, organized and existing as a public body corporate pursuant to powers of the Supreme Court over the bar of the state. The State Bar of Michigan shall, under these rules, aid in promoting improvements in the administration of justice and advancements in jurisprudence, in improving relations between the legal profession and the public, and in promoting the interests of the legal profession in this state."
Rule 1, Supreme Court Rules Concerning the State Bar of Michigan.
On November 12, 1935, the Michigan Supreme Court adopted Supreme Court Rules Concerning the State Bar of Michigan to be effective on December 2, 1935, and to remain in effect until altered or abrogated. The Court stated in Sec. 16: "The foregoing rules are promulgated pursuant to the powers of the court over the bar of the state and the members thereof." 273 Mich xlv (1935).
Further, the Michigan Constitution places responsibility for the regulation of the practice of law upon the Michigan Supreme Court. Const 1963, art 6, sec 5 states:
"The Supreme Court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state . . ."
Regulation of lawyers and the practice of law, the promulgation of rules for admission and discipline of lawyers practicing before the state courts of Michigan, and the promulgation of rules regarding the operations of the State Bar of Michigan, are exclusively within the inherent power of the Michigan Supreme Court.
Creation of the Representative Assembly
In 1970 the State Bar Board of Commissioners noted that due to a large increase in membership, there was a lack of opportunity for meaningful contact between members of the bar and the Board. When the State Bar was founded in 1935, there were 4,278 members represented by a Board of 21 commissioners. By 1971, there were nearly 12,000 members and only 23 commissioners. A Special Committee to Review the Structure of the Bar commented:
"[A] Board which involves only 23 individual points of view cannot adequately represent the range and variety of viewpoints to be found in so large and diverse a membership, particularly with respect to policy decisions."
It was to improve the proportion of members who may actively participate in bar policy-making that the State Bar Board of Commissioners requested in 1971 that the Supreme Court create a "representative assembly". To ensure that a reasonable ratio was maintained as the number of State Bar members increased, the Representative Assembly was structured to reflect the lawyer population from the state's judicial districts.
The first Assembly meeting was held in 1972. Since 1972 the Assembly has grown from 127 to 150 members.
State Bar Structure
Rule 6 of the Supreme Court Rules Concerning the State Bar of Michigan [SBM Rule 6] establishes the Representative Assembly as the final policy-making body of the State Bar.
The Board of Commissioners implements policy adopted by the Assembly and establishes policy for the State Bar between Assembly meetings not inconsistent with prior action of the Assembly. SBM Rule 5. The President has the authority to exercise the power of the Board between meetings of the Board and to take such action as considered appropriate whenever a meeting of the Board or the Executive Committee is not necessary or cannot reasonably be convened. State Bar Bylaws, Art III, §8.
The Board of Commissioners establishes and prescribes the functions and organization of committees and sections, which operate within the scope of their jurisdiction. Sections and committees may be reconstituted or terminated by action of the Board. SBM Rule 5, §1(b), 11 and 12. The Board has explicit authority to manage the State Bar, adopt a budget, publish the Michigan Bar Journal, conduct litigation, hold real estate, and borrow money. The Board may delegate these functions to another State Bar entity. SBM Rule 5, §1(b) and (c).
The Executive Director is appointed by the Board of Commissioners, which prescribes the duties of the office. The Executive Director has the privilege of the floor at all meetings of the Board of Commissioners, the Representative Assembly, sections, section councils, committees, or subcommittees, without vote. The Executive Director oversees the day-to-day operations of the State Bar, implements policies set by the Board and the Assembly, and selects and directs the efforts of State Bar staff.
Representative Assembly Structure
The officers of the Assembly consist of a chairperson, vice-chairperson, and clerk. The chairperson presides during Assembly sessions, sends notices requesting submissions for the Assembly calendar, and summaries of Assembly policy actions.
The chairperson appoints members of Assembly committees. There are three standing committees of the Assembly, as follows:
- Rules and Calendar, which reviews all proposals submitted for Assembly consideration for adequacy of the information supplied and form. If the submission is accepted, the item is placed on the Assembly agenda. Some items may be referred to appropriate State Bar committees or sections for review and recommendation. If, in the judgment of the Committee, the materials available on any item are not adequate to allow the Assembly to fully consider the matter, the item will be withheld from the calendar until further information can be obtained. The Committee may make recommendations for Assembly action on any agenda item.
- Hearings, which may hold hearings on any matter on which non-members of the Assembly ask an opportunity to present their views. The Committee may hold meetings any time of the year if reasonable notice is given. Reports are made as soon as possible following a hearing and appropriate recommendations are made to the Assembly at its next meeting.
- Drafting, which considers for revision as to phraseology any proposal referred to it by the chairperson or the Assembly.
In addition to standing committees, special committees may be created to study and report on specific matters. There are currently three special committees, as follows:
- Assembly Review, which makes recommendations for revising Assembly rules, expediting work, or coordinating efforts with other State Bar entities to enhance the performance of the Assembly.
- Nominating, which identifies Assembly members for Assembly office and recruits State Bar members to run for Assembly election.
- Special Issue, which considers any matter referred to it by the Assembly or the chairperson which does not fairly fall within the jurisdiction of another existing committee.
Scope of Authority
The Representative Assembly may address:
1. Its own membership eligibility, composition, rules and internal procedures.
2. Petitions for increases in dues.
3. Reports and Recommendations submitted by State Bar constituent members and entities in the form prescribed and after notice, calendaring and hearing pursuant to Assembly rules.
4. Legislative priorities within the scope of Michigan Supreme Court Administrative Order 2004-1.
In Keller v. State Bar of California, 496 US 1; 110 L Ed 2d 1; 110 S Ct 2228 (1990), the Court, likening a unified bar to a labor union, held that dissenting members may not be compelled to pay a fair share of ideological expenses not reasonably or necessarily incurred for regulating the legal profession or improving the quality of legal services. The Michigan Supreme Court implemented Keller in Michigan by adopting various Administrative Orders. The State Bar of Michigan is currently operating under Administrative Order 2004-1, which states in pertinent part:
"I. The State Bar of Michigan shall not, except as provided in this order, use the dues of its members to fund activities of an ideological nature that are not reasonably related to:
"(a) the regulation and discipline of attorneys;
"(b) matters relating to the improvement of the functioning of the courts, judicial efficacy and efficiency;
"(c) increasing the availability of legal services to society;
"(d) regulation of attorney trust accounts; and
"(e) the education, ethics, competence, integrity and regulation of the legal profession. . .
"II(C) No other activities intended to influence legislation may be funded with members' mandatory dues, unless the legislation in question is limited to matters within the scope of ideological activities requirements in Section I.
Thus mandatory State Bar dues may not be used to fund ideological activities, including legislative advocacy, that do not fall within one of the categories of the Administrative Order, Section I. Since all expenses of the Representative Assembly are paid by mandatory dues, the Assembly may not engage in ideological activity outside the scope of the Administrative Order.
The Representative Assembly meets at least twice each year, in April and September in conjunction with the meetings of the Board of Commissioners. A third meeting may be called as business warrants.