Free Speech

Are Laws Requiring Lawyers to Join (and Fund) State Bar Associations Unconstitutional?

In Janus, the Court rejected requirements that government employees pay dues to unions; now the question before the Court is whether this applies to mandatory bar membership (and bar dues).

|The Volokh Conspiracy |

Here are the questions presented in Fleck v. Wetch, now pending before the Supreme Court:

The Petitioner is an attorney who is required by state law to join and to fund a state bar association as a condition of practicing law. He challenged both compulsory membership and the compulsory funding of the association's political activities under the First Amendment. This Court vacated and remanded the previous judgment against him for consideration in light of Janus v. AFSCME, 138 S. Ct. 2448 (2018), whereupon the Court of Appeals reaffirmed its prior ruling in all respects, holding that "Janus does not alter our prior decision." Fleck v. Wetch, 937 F.3d 1112, 1118 (8th Cir. 2019) (App. 13a).

The questions presented are:

1. Are laws mandating membership in a state bar association subject to the same "exacting" First Amendment scrutiny that the Court prescribed for mandatory public-sector union fees in Janus?

2. Does it violate the First Amendment to presume that an attorney is willing to pay for a bar association's "non-chargeable" political and ideological speech, unless and until that attorney takes steps to opt out?

(The second question, as you might gather, is narrower than the first.) You can also see the responses and the reply brief here. It will be interesting to see whether the Court agrees to hear the case; for Will Baude's and my thinking on the issue, see pp. 196-98 of our Harvard Law Review article, "Compelled Subsidies and the First Amendment," which starts with this:

Compulsory bar dues have long been treated the same as public employee union agency fees. In Lathrop v. Donohue, the Court held that lawyers can be required to pay such dues, but in Keller v. State Bar of California, the Court held that the dues couldn't be used for political advocacy that wasn't "germane" to "the State's interest in regulating the legal profession and improving the quality of legal services." Keller thus tracks the old Abood rule, in which dues could be required but only for certain purposes.

Now that [after Janus] public employees can't be required to pay money at all to unions [and Abood has been in part overruled], we think the Court will say that lawyers can't be required to pay it to state bars either. After all, speech by the state bar is as likely as speech by unions to "touch fundamental questions of … policy," and more broadly to "have powerful political and civic consequences," even when it just has to do with regulating the legal profession.

Note that the petition doesn't challenge the state's power to decide who is allowed to practice law in the state, or to discipline or disbar lawyers. Each state Supreme Court would always have the power to maintain such licensing even without compulsory membership in a bar association.

NEXT: Today in Supreme Court History: February 18, 1988

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  1. I think the article is lacking context.

    How many states have mandatory membership requirements?
    I don’t believe all of them do.
    Are some state Bar Associations more limited in their activities than others?
    Do some of them have regulatory/disciplinary authority separate from the State Supreme Court?

    1. “I don’t believe all of them do.”

      Correct, Ohio is one of them.

    2. So is Colorado. Before I retired I was licensed in CO and AZ. CO had a separate bar and bar association. In AZ they were integrated. The CO bar association rag had a lot of content, but not a lot of politics. AZ on the other hand required that you pay for their rag in order to practice law in the state. It was glossy and inevitably filled with a lot of progressive content that I thought had no place in a publication paid for through mandatory bar dues. Plus a lot of fluff, extolling the virtues of the biggest firms, most costly attorneys, etc.

    3. Minnesota is also a state where the state and local bar associations are optional. You do still need to pay a state licensing fee, however. And yes, the regulatory/disciplinary matters are handled by a separate state board.

  2. Most people are fond of hazing rituals that they are no longer subject to — doctors love to tell you that you should get plenty of sleep and that sleep deprivation hurts your performance, but wax nostalgic about working 36 hour shifts as residents. All of which augurs well for upholding the requirements.

  3. FYI, there is currently pending (mutual motions for summary judgment) a case in the Western District of Texas challenging the mandatory bar membership/dues for the State Bar of Texas. Legal commentator Mark Pulliam is one of the plaintiffs. (Case is 1:19-cv-00219-LY, MacDonald v. Sorrels et al. (W.D. Tex.).
    Judge in the case is Lee Yeakel, who is a careful and serious jurist.)

    The activist left captured the State Bar of Texas years ago. A decision for the petitioners would likely force the de-politization of the SBoT, as otherwise a substantial enough portion of the membership would leave, and the organization would become economically unviable.

    1. “A decision for the petitioners would likely force the de-politization of the SBoT, as otherwise a substantial enough portion of the membership would leave, and the organization would become economically unviable.”

      Maybe not economically unviable – if they actually started providing value add in their services and publications. My view is that the monthly CO bar assn publication was much better (though less glossy) than the one published by the AZ bar assn, simply because membership was not mandatory, so they had to value add to be viable.

      1. if they actually started providing value add in their services and publications.

        That would be really hard to do as long as they continued to be political – there’re only so many pages and the more political activism you cram in, the less you can devote to things you might actually want in a trade journal.

  4. I agree that the Court should decide that states can’t require attorneys pay state bars fees.

    Perhaps if the bars were apolitical and were solely designated to create standards for ethics, training, certification, etc., but definitely not if the bar is authorized (or is chartered) to advocate political issues.

    Even though this isn’t a “union” issue, the Janus concepts are quite compatible.

    1. I am not a fan of Janus, but it seems to me you can’t overturn Abood in the union context while leaving it in place in the bar context.

      And quite apart from their constitutionality, state bars are really bad policy and are only structured the way they are due to tradition. How is every other profession regulated? Oh yeah, that’s right, they pay licensing fees and then there’s an administrative agency that regulates them, with regulators chosen by the state government. And it works pretty well. There was never any reason for a special structure for lawyers.

      1. As I commented below, that is precisely what NY and NJ do, albeit the administrative agency is a court. (The Supreme Court in NJ, one of the four departments of the Appellate Division in NY.)

    2. Perhaps if the bars were apolitical and were solely designated to create standards for ethics, training, certification, etc., but definitely not if the bar is authorized (or is chartered) to advocate political issues.

      You’re presuming that a single bar – having its competition eliminated by government fiat – would be able to function as a useful and *ethical* standards creator, etc.

      When its obvious that existing bars are not capable of that. Hence their politicization across the country.

  5. So to clarify, the issue is the status of the “Bar Association”? If the state Supreme Court were to require a, say, $1,000 annual fee to be licensed as an attorney for that year to cover the expenses related to the licensing and disciplinary process, that would be permissible? My scenario would seem to be pretty much the same as how physicians, engineers, and dentists are licensed.

    It seems to me the core issue is this unique and amorphous body of the “state bar” that exists as a professional lobby, a licensing agency, and a disciplinary entity that causes any First Amendment problem. Sever the first, and the remaining, functions and there is no concern.

    1. Right. The two states in which I am licensed — NY and NJ — do exactly that. We pay a bi-annual fee to the licensing court. Not $1000, but more in the range of a few hundred dollars every two years. Money goes to administrative fees, disciplinary proceedings, and a few other politically neutral activities. AFAIK, no one is complaining.

  6. Do your damnedest, clingers.

    After getting stomped in the culture war throughout their lives, no wonder conservatives are looking to smack unions, non-Christians, Democrats, gays, civil servants, accomplished communities, strong universities, and other elements of the liberal-libertarian mainstream.

    Enjoy it while it lasts. I’ll see you . . . well, Springsteen can explain it. You really figure your betters aren’t going to get around to providing similar treatment to corporations, churches, and other right-wing favorites?

    1. Way to miss the point, RAK. Corporations are already held to these standards and more.

      But then, you do have to uphold your reputation as the most mindlessly bigoted commenter here. (And given some of the other comments, that’s a high bar.)

      1. Wrong, clinger. If a shareholder — owner — doesn’t like the manner in which a corporation expends funds, that shareholder can’t obtain a refund.

        The rule should — and someday will — be that if you don’t like a corporation’s conduct, find another investment. If you don’t like an employer’s workplace rules (such as union membership), find another job. If you don’t like a union’s conduct, find another job.

        Freeloaders will not be able to pursue their parasitic ways (arranged by right-wingers who dislike unions for partisan reasons) forever. America is better than that.

        Don’t like being called bigots, clingers? Ditch the bigotry. Until then, you’ll be labeled bigots by your betters.

        1. No, they can’t get a refund. But they can force the company to investigate whether some practice is illegal (and if it doesn’t, file a derivative claim).

          And your proposal that people just “find another investment” is laughable. You basically would insulate boards from any accountability to shareholders. I promise you that if some republican proposed such an arrangement, you’d be going on about how the “clingers” are installing unaccountable boards so they can all have their own Trumps leading corporations.

          Point is, you have no idea what you’re talking about and take up whatever position you think will allow you to argue with people you dislike based on your assumptions and stereotypes about them. That’s why you’re a partisan hack and a hypocrite to label people bigots.

          1. If a shareholder dislikes a corporation’s sponsorship of an event, or purchase of a particular advertisement, that shareholder can not (and should not) get a refund. If the corporation’s involvement in a cause or with another organization is sufficiently offensive to the shareholder, that shareholder should find another investment, one more to his liking.

            Similarly, if an employee dislikes the terms of employment (union membership) or objects to particular union conduct, to the point at which the employee does not wish to be a member of the union, that employee should find another job, one more to his liking.

            The employee and shareholder are similarly situated and should be treated similarly in those situations.

            That meandering concerning corporate accountability in the context of wrongdoing (distinguishable from something someone doesn’t like) is irrelevant to this issue (as would be a discussion of union misconduct). Neither the union nor the corporation need do anything wrong to offend a particular investor or member.

            Other than that, though, great comment!

            1. Except that you are still wrong. Let’s say the articles of incorporation said, “In no circumstances may the corporation spend money on lobbying,” but then the board spent money on lobbying, the shareholder would bring a derivative action demanding the spending be stopped and that he board refund the corporation. Or, say the articles said that profits would be distributed and that no member is required to make capital contributions. If the board nevertheless forced the person to reinvest profits (say by distributing shares instead), the person would be able to bring a claim seeking payment of cash instead.

              In this case, instead of articles of incorporation, we’re talking about the constitution. And instead of talking about corporate spending, we’re talking about government-compelled speech.

              As far as your analogy about unions, it’s also off. If an employer wanted to say that all employees must be members of the union, then you’d have a point. But the situation is one in which the employee and employer want to contract with each other, but the government has said that’s not possible because the person must be a member of the union (which includes being forced to spend for the union’s speech and lobbying efforts).

              So other than being completely wrong on the law, incorrect analogies, and bravado about your ignorance, great comment!

              1. The issue, you bigoted right-wing dullard, is dissatisfaction with proper but — in the eyes of a particular member or shareholder — objectionable expenditure or other conduct by a corporation or union.

                A single shareholder who dislikes a corporation’s activity has no practical recourse other than to find another investment.

                A single union member who dislikes a union’s activity is able, thanks to recent conditions arranged by right-wingers, can freeload, parasitically enjoying union benefits without paying the freight.

                The remedy for the disgruntled shareholder is and should be ‘find another investment (or perhaps work to change the corporation’s conduct).’

                The remedy for the disgrunted worker should be, long was, and I expect again will be ‘find another job (or perhaps work to change the union’s conduct).’

                1. Again, bigoted statist and internet troll, you show a lot of bravado for being absolutely wrong on the law.

                  A single shareholder, holding a single share, can bring a derivative action (provided the investor can establish the board’s non-action). And they can do so if they have a non-frivolous claim that the expenditure constitutes a breach of the board’s duty, which is often a matter of opinion and judgment.

                  Sure, as a practical matter, the board will generally shut that down by appointing a special litigation committee to review it. But the suggestion that they have no other option isn’t just legally wrong, but a stupid proposal for the reasons I suggested.

                  Just as the lone dissatisfied investor can help keep a company’s wrongful acts in check, so too can the dissatisfied union member or bar-dues-paying lawyer, who finally stands up and says that government compelled spending for political speech is unconstitutional.

                  But please, keep confirming your ignorance on these issues.

                  1. The issue I addressed does not involve corporate or union misconduct, yet you continue to stray into that irrelevance.

                    Is that a Liberty, Ave Maria, Oral Roberts, or Regent law degree talking? Or just some general clinger crankiness?

                    My hunch is that bigotry has rotted your mind. The good news for you is that the Conspiracy welcomes you.

                    1. You don’t even know what you’re arguing about any more.

                      Your claim was that if you don’t like what your corporation/union/bar association is doing, your only recourse should be (and soon will be) to leave the investment/job/profession. But the issue here is that the government is doing something prohibited by the First Amendment (compelling you to pay for speech). So I pointed out, repeatedly, that your argument isn’t true if the thing you don’t like is unlawful. In that case, you can do something, and that the opposite rule would have significant consequences.

                      You’re the one who then tries to dodge the issue by ignoring the fact that the objection is over government-compelled speech. If we were just talking about the ABA, where membership is optional, then people would just drop their membership (as many do). That’s not at issue in this post.

                      So yes, your argument DOES involve misconduct. Talking about misconduct is the whole point of the post.

                      Nevertheless, you think that there should be no recourse (and that the law will soon provide for no recourse) because shareholders would have no recourse but to leave the company if a corporation did something against their “constitution” (i.e., articles of incorporation). Same for unions. That is flat wrong.

        2. Enjoy your civil war then, because that’s exactly what’s going to happen when you force these so called bigoted clingers to choose between violating their sincerely held beliefs and putting food on the table.

          1. There will be no civil war.

            Just a bunch of reckless ranting by all-talk malcontents.

    2. Interesting that the Republican administration is moving towards deregulation, supporting the Bill of Rights to the fullest; and the Democratic field consists of a totalitarian (Bloomberg), a communist-cum-socialist (Bernie), an affirmative action thieving, hypocritical social just warrior (guess), …. And you think going with this crowd, going farther and farther “left” is a good thing? You will learn the hard way that just to the left of this crowd are the totalitarians and dictators of the previous century and this.

      1. Interesting that the Republican administration is moving towards deregulation, supporting the Bill of Rights to the fullest;

        Well, it’s interesting that you come from a different dimension in the multiverse than the rest of us.

    3. ” unions, non-Christians, Democrats, gays, civil servants, accomplished communities, strong universities, and other elements of the liberal-libertarian mainstream”

      So you admit that unions, civil servants, and universities are liberal?

      (By the way, “accomplished communities” are not liberal nor libertarian.)

      “You really figure your betters aren’t going to get around to providing similar treatment to corporations, churches, and other right-wing favorites?”

      The legal issues at play are wildly different. No one compels donations to churches, least of all the state, and certainly not as a condition of employment in a given profession. The issue in Janus and Fleck are that dues (i.e. payments) which go towards political activity are a government-mandated requirement of working in a given profession. Churches do not even require donations of their attendees (they strongly encourage it, but they don’t toss you out the door for not paying).

      A non-profit may require dues as a condition of membership, and may require membership or donations as a part of employment or serving in a supervisory capacity (e.g., board or other association), but the issue is that if you are employed by the non-profit or oversee its operations, you should presumably be sufficiently aligned with its mission as to support it.

      I am required as a condition of serving on my alma mater’s alumni council to donate to the university annually; I donate to the organisations that I sit on the Boards of. But that in no way impacts my ability to work in a profession, and as someone with influence over the direction of those groups, I’m hardly in a position to complain about the direction those groups take.

  7. The prominent mentions of disciplinary and ethics oversight responsibilities seem odd. Is there any state whose bar takes those seriously?

    1. They take some of them seriously. If you are a lawyer and you steal money from a client trust account, prepare to get rung up.

      And many bars have fee arbitration systems which work reasonably well and allow clients to challenge when they are overcharged.

      What they don’t take seriously is the regulations regarding honesty. They almost never discipline lawyers for making false statements, engaging in sharp practice, burying documents, etc. And that’s a real problem.

      1. What they don’t take seriously is the regulations regarding honesty. They almost never discipline lawyers for making false statements, engaging in sharp practice, burying documents, etc. And that’s a real problem.

        And if we’re talking about prosecutors, you can eliminate the word “almost.”

      2. “What they don’t take seriously is the regulations regarding honesty. They almost never discipline lawyers for making false statements, engaging in sharp practice, burying documents, etc. And that’s a real problem.”

        Ironically, that is one of the few things bars should be doing.

  8. Thanks Dilan. It’s almost as if the people who craft and oversee compliance with all of those highfalutin’ sentiments in their ethics codes care in practice more about money than they do about justice.

    1. Well, I wouldn’t be THAT flip. I think we all would agree that lawyers shouldn’t steal their clients’ money, and it’s really important that State Bars take action when they do.

      The problem is that legal ethics is supposed to be about more than just “don’t steal your clients’ money”.

  9. Agreed. The bar associations are a joke. I have one name for you: Avenatti. What do you have to do to be disbarred? Maybe cut a judge’s head off or something. Stealing millions from clients and attempting to extort millions from a company didn’t do it.

    I wonder if he’s been disbarred, and lost his license, now that he’s been sentenced?

    1. You seem to dislike life as a fringe-dwelling malcontent. Any thoughts concerning changing your bigoted, stale-thinking ways?

    2. He hasn’t been sentenced.

    3. The California bar did in fact move to suspend Avenatti’s license following his indictment (he was most recently arrested while leaving one of the bar hearings), and it seems extremely likely that he will be disbarred long before he’s released from custody.

  10. Would mandatory CLE also be on the chopping block? *crosses fingers*

    1. People who disdain education are among my favorite casualties of the culture war.

      Carry on, clingers. So far as backwardness, ignorance, bigotry, and superstition can carry anyone in modern America, that is.

    2. I wish, but of course that’s an entirely different issue.

    3. Judging from states that don’t have mandatory bar associations, no, they wouldn’t. They would just be administered by the state.

      In fact, most (if not all) other licensed professionals also have mandatory continuing education, but do not have mandatory membership in trade groups.

  11. The other Janus-face of this, perhaps: non-waiver of disproportionately high bar fees (relative to the service provided) for those unable to meet the cost.

    Which, in fact, is a thing.

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