Supreme Court

Should the Supreme Court Reconsider Keller v. State Board of California?

Do mandatory, integrated state bar associations violate the First Amendment? Two justices would like the Court to reconsider this question.

|The Volokh Conspiracy |

In Keller v. State Bar of California (1990), the Supreme Court unanimously upheld the constitutionality of requiring practicing attorneys to join an "integrated" state bar association—a bar association that both regulates the practice of law within the state and lobbies on behalf of the interests of the legal profession (as determined by the bar). The decision expressly rested on Abood v. Detroit Board of Education, which allowed for mandatory public sector union dues. Abood is no longer good law, however, having been overturned in Janus v. AFSCME. So does this mean the Supreme Court should reconsider Keller?

This morning the Supreme Court denied certiorari in Jarchow v. State Board of Wisconsin, which presented that question. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari. Justice Thomas wrote:

A majority of States, including Wisconsin, have "integrated bars." Unlike voluntary bar associations, integrated or mandatory bars require attorneys to join a state bar and pay compulsory dues as a condition of practicing law in the State. Petitioners are practicing lawyers in Wisconsin who allege that their Wisconsin State Bar dues are used to fund "advocacy and other speech on matters of intense public interest and concern." App. to Pet. for Cert. 10. Among other things, petitioners allege that the Wisconsin State Bar has taken a position on legislation prohibiting health plans from funding abortions, legislation on felon voting rights, and items in the state budget. Petitioners' First Amendment challenge to Wisconsin's integrated bar arrangement is foreclosed by Keller v. State Bar of Cal., 496 U. S. 1 (1990), which this petition asks us to revisit. I would grant certiorari to address this important question.

In Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the Court held that a law requiring public employees to pay mandatory union dues did not violate the freedom of speech guaranteed by the First Amendment, id., at 235–236. In Keller, the Court extended Abood to integrated bar dues based on an "analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other." 496 U. S., at 12. Applying Abood, the Court held that "[t]he State Bar may . . . constitutionally fund activities germane to [its] goals" of "regulating the legal profession and improving the quality of legal services" using "the mandatory dues of all members." 496 U. S., at 13–14.

Two Terms ago, we overruled Abood in Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018). We observed that "Abood was poorly reasoned," that "[i]t has led to practical problems and abuse," and that "[i]t is inconsistent with other First Amendment cases and has been undermined by more recent decisions." Id., at ___ (slip op., at 1). After considering arguments for retaining Abood that sounded in both precedent and original meaning, we held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees." 585 U. S., at ___ (slip op., at 48).

Our decision to overrule Abood casts significant doubt on Keller. The opinion in Keller rests almost entirely on the framework of Abood. Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller. If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus.*

Respondents argue that our review of this case would be hindered because it was dismissed on the pleadings. But any challenge to our precedents will be dismissed for failure to state a claim, before discovery can take place. And in any event, a record would provide little, if any, benefit to our review of the purely legal question whether Keller should be overruled.

Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions. We have admitted that Abood was erroneous, and Abood provided the foundation for Keller. In light of these developments, we should reexamine whether Keller is sound precedent. Accordingly, I respectfully dissent from the denial of certiorari.

[*] Respondents resist this conclusion by citing Harris v. Quinn, 573 U. S. 616 (2014), which predates Janus. But all we said in Harris was that "a refusal to extend Abood" would not "call into question" Keller. Harris, 573 U. S., at 655. Now that we have overruled Abood, Keller has unavoidably been called into question.

NEXT: The Rise and Fall and Rise Again of the 'Outside Agitator' Story

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  1. How would that work in attorney discipline cases? If there is no integrated and mandatory bar, who would then have the authority to tell disbarred attorneys they can no longer practice law?

    1. The state supreme court will still be the final disciplinary authority on the regulation of the practice of law in a state. The regulation of attorney practice and the services the bar association does will be separate and you can be voluntarily associated with it. The court can probably delegate authority to voluntary bar associations to assist them in performing things like disciplinary investigations and such if they choose. In my state, which is voluntary, the local bar associations often investigate and prosecute disciplinary cases.

      1. In Wisconsin, the state bar doesn’t have any disciplinary authority. All attorney discipline is handled by the state supreme court anyway. All the state bar can do is refer cases to the supreme court.

    2. Presumably the state-run authority that controls licenses for practicing attorneys, the same way it runs in the many states without integrated mandatory bar associations.

      For example, in Arkansas, there are two organizations. There is the Arkansas State Bar, voluntary (non-mandatory) bar association of the U.S. state of Arkansas. And there is the Arkansas State Board of Law Examiners, a state agency, that controls access to the bar.

      1. In Wisconsin, even with an integrated bar, attorney discipline is handled by the state supreme court.

        The Office of Lawyer Regulation is an agency of the Wisconsin Supreme Court, not the state bar.

    3. The same way it works for discipline for all other professions that don’t require an integrated and mandatory bar. Attorneys are the unusual duck here, in that they are even more self regulating than other professions.

      1. And should they be?

        Is the interest of the public served?

        1. If the system worked it wouldn’t necessarily be bad, however it seems in most jurisdictions lawyers are rarely punished. About the only thing that seems to get attention is stealing a clients money.

          1. “If the system worked it wouldn’t necessarily be bad…”

            This is only true if you think the purpose of the system is to punish lawyers some amount more than they are punished right now. The purpose of punishing lawyers is not to protect the public. It’s to protect the prestige of the legal industry. You don’t have to do much punishing to preserve that fake prestige.

          2. About the only thing that seems to get attention is stealing a clients money.

            Around these parts, IOLTA accounting errors that result in no loss to any client are routinely grounds for discipline.

            1. Where I practice, an IOLTA accounting error that results in no loss to any client is a three year suspension.

              On the other side of the ledger, I routinely see lawyers deliberately falsify claims that they make in their pleadings and at oral argument, with no repercussions whatsoever. As between the two of them, I would think lying to the court would merit a far harsher sanction that a no harm, no foul screwup in your IOLTA, but then I don’t make policy. So it seems to me that one set of wrongs is over-punished and the other is under-punished.

              It reminds me of the judge who was retiring after many years on the bench. At the retirement luncheon, he got up and gave the following speech: When I was a young judge, I was probably too aggressive and likely convicted some people who should have been acquitted. As I got older, I became more cautious, and I probably acquitted some people who should have been convicted. So I’m happy to say that over the years, between the wrongful convictions and the wrongful acquittals, it all evened itself out.

              1. “As between the two of them, I would think lying to the court would merit a far harsher sanction…”

                That’s a fair normative claim, but it’s divorced from the practical reality of administrative regulation. Most professional regulating entities are made up of boards, commissions, or committees of people who share the same licensure as the people they are overseeing. But the enforcement actions aren’t run by those people. They’re run by staff. The investigators aren’t lawyers/doctors/engineers at all. The lead enforcement officer may be a lawyer, but there is no reason to think they have any special expertise in prosecuting administrative cases. Most of those positions are filled by laterals who have never worked in or around the agency they take the job for.

                With the understanding that the enforcement staff makes the initial prosecutorial decision, it’s hardly surprising that IOLTA violations make up a disproportionate number of enforcement actions than “deliberately falsify claims” however defined. IOLTA violations are easy to identify and easier to prove. Someone either had the money in the right account, or didn’t. The information you need to make the case is easy to identify and ask for. There is no judgment call necessary on the guilt/innocence side. Subjective intent is probably irrelevant. But “I don’t like this lawyer because they overstated or misstated the holding of a case” is going to require a judgment call from staff as to whether it is sanctionable in the first place. And that judgment call is being made by a non-lawyer, in the context of an adversarial proceeding where the putative respondent is claiming their sacred right to zealous advocacy. Assuming for the sake of argument that the former private detective, now enforcement staff at the State Board of Law Examiners, is qualified to make that call, what makes you think he’s do so, anyway?

                1. That’s a fair point.

                  Thirty years ago, before my state had IOLTA, I was a new lawyer, having only been a member of the bar for a few months. A bankruptcy client came to my office to sign the paperwork and brought me the filing fee in cash, which at the time was $90. It was after 5 when he left so I put the cash in my wallet and used it to run some errands on the way home.

                  The next morning I stopped by my bank, withdrew the funds to pay the filing fee, went to the courthouse, and filed his case. No client was harmed by my commingling and temporary use of his finds.

                  Now, in those pre-IOLTA days, that was perfectly legal. So long as I paid the money back and there was no delay in filing his case, no problem. Today, that would likely get me disbarred.

        2. No, but “the interest of the public” is not the purpose of legal self-regulation. That’s the stated but not intended purpose. The intended purpose is to allow attorneys to extract monopoly pricing from consumers of legal services. There’s no real reason to regulate attorneys at all, outside the criminal and family law contexts. If an estate lawyer screws up your will, there’s not even an arguable public health, safety, or welfare component to a regulatory regime against that lawyer, outside of the ordinary civil process.

          There’s no reason to argue about it, though, since lawyers are uniquely situated in that the people responsible for enforcing change under existing law (judges) or enacting new legislation to change the existing scheme (legislators) are both over represented by lawyers. Until that changes, lawyers will continue to be self-regulated.

          1. There’s no real reason to regulate attorneys at all, outside the criminal and family law contexts.

            Not quite. We hold lots of money in trust, as our services are often prepaid. So there’s a good reason for some level of occupational licensing and moral character requirements to protect the public from thieves.

            1. I prepay for a lot of services that aren’t regulated. Remodeling contractors in my jurisdiction routinely required 10-30% up front. I have to pay movie theaters before I see the movie. Basically every partnership agreement requires investment before return.

              There are already laws protecting people from thieves. And licensing requirements don’t prevent lawyer theft. However, you could solve this on the back end without requiring licensure for practice. In addition to criminal charges, you could make it so that people who breach trust duties with client money are prohibited from practicing law moving forward.

              1. The sums lawyers can handle are a lot higher. For instance, we can receive a $30 million settlement check on behalf of a client.

    4. The states control attorney discipline and licensing. They could form a disciplinary committee with a structure similar to a state bar, and even fund it with a tax on lawyers.

      The Keller problem is that this isn’t all that state bars traditionally did. Rather, they also do continuing legal education, advocacy, public education programs, and the like. Most of it isn’t nearly as partisan as the stuff alleged by the plaintiffs in this case, but all of it goes beyond what a traditional regulator does.

      There’s a possible route to saving integrated state bars (if they are even worth saving) in the Court’s caselaw on agricultural advocacy organizations. The Court has upheld mandatory assessments on milk producers to promote dairy products, for instance. Perhaps it is similarly constitutional for lawyers to be assessed a fee to promote the profession.

      1. “They could form a disciplinary committee with a structure similar to a state bar, and even fund it with a tax on lawyers.”

        Wisconsin already does this. The Office of Lawyer Regulation, which takes and investigates misconduct complaints against lawyers is an arm of the state Supreme Court. The Wisconsin Supreme Court itself makes all final decisions on lawyer discipline.

        1. Technically, a lot of integrated bars work that way. For instance, the reason Stephen Glass, the famous fabulist, didn’t get to become a lawyer is that ultimately the Supreme Court controls admission to the bar and the State Bar is subordinate to it.

          Nonetheless, no doubt we have an integrated bar (and indeed, Keller was a California case).

  2. I still don’t like Janus and think the decision to overrule Abood was a poor one, but the consequences here naturally follow. The Court should have accepted this case. I don’t think there’s any way to distinguish it from Janus besides “lawyers are different.”

    1. Agreed. And FWIW, there would probably be less drastic consequences than the decision in Janus. There’s no “free rider” problem, and it won’t affect the ability of the State Supreme Court to regulate the practice of law.

      1. There wouldn’t be a free rider problem resulting from Janus if the various state education associations hadn’t insisted on having exclusive bargaining powers within the educational system.

    2. This exactly. If Abood is no longer good law, than neither is Keller in regard to unified mandatory bar associations. If anything, Keller is much closer to a First Amendment problem than union dues to a closed shop. It’s association with a mandatory state-controlled or state-supervised agency.

  3. The consequence could well be something similar to the AMA — the vast majority of MDs do *not* belong to the AMA, which makes its money not from dues but from it’s copyrighted list of billing codes which MDs must use to bill Medicare.

    I’ll leave to others to speculate if this would be good or bad.

    1. “The consequence could well be something similar to the AMA”

      No, it wouldn’t. It’s not the same, at all.

      The AMA is similar to the ABA. This is an issue of state bar associations, which is similar to … state medical boards. If medicine changed a great deal when you crossed state lines.

      1. The quality of medicine actually does change a great deal when you cross a state line. I’m not impressed with Florida.

        1. It’s not quality.

          If medicine itself changed. In other words, if you people had intestines in Florida, but didn’t in California, that’s what it would be like.

          While it is nice to think about the commonalities in the law, it is the differences between the states that really matter.

          1. “If medicine itself changed. In other words, if you people had intestines in Florida, but didn’t in California, that’s what it would be like.”

            I like this analogy, but what would medicine be like in Louisiana whose legal system is based on Napoleonic law rather than English Common Law?

  4. I think Janus was wrongly decided, but I don’t understand how Keller continues to be good law after it.

    That said, I think it would be interesting to see what the rates of discipline, misconduct, etc. are between states that have integrated mandatory bar associations and those that don’t.

    I have assumptions (that they aren’t different) but that shouldn’t be a particularly difficult study to run.

  5. What is the case (public policy or constitutional) for publicly protected private guilds anyway?

    1. The constitutional case is that states can do what they want. Outside of a supremacy clause claim, what’s the constitutional argument against publicly protected private guilds?

      The stated case for publicly protected private guilds has always been that if you force the guild members to compete with each other under the rules of commerce that govern everybody else, the guild will provide services to the public so poor as to be harmful. This isn’t so much an argument as a threat, but it’s been very effective in virtually every regulated profession.

  6. How did cert not get four votes here? Anyone have any inside baseball analysis?

    1. Inside baseball? No. But Kav wasn’t on the Court then, Kennedy was. If Alito or Roberts are sufficiently nervous about his vote they may choose not bring the issue up because while state bars are fairly insular, any decision curbing Janus at all could have profound effects on other public unions and organizations.

      The bar and the law profession has also always had a somewhat different relationship to government than other public industries even. More than any other profession that isn’t inherently government (like law enforcement) the legal profession has always had a police thyself relationship.

      I don’t think any of that changes that given Janus I don’t see how it can stand, but then again I also think licensing laws in general are on shaky constitutional ground under a right to make a living.

      1. As said above, there’s a notion that “lawyers are different”. SCOTUS is full of lawyers. It may just be a simple matter of not wanting to apply the same rules to their own kind.

  7. I prefer to wait for a problem before backing a solution.

    And no, bright eyed Federalist Society creeps, you don’t have a problem (but you’ve been known to create some).

  8. The concept of a Bar is fine but they should be strictly limited in purpose from what they are now just like unions should be so your union dues or bar fees go to actual bar duties and workplace rights and not bailing out ANTIFA looters

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