The problem never arose in New York, as admission to, and regulation of, the bar was handled by the courts. We’ve got bar associations for everything, but they’re all voluntary membership organizations. No lawyer is required to join any bar association in order to be a member of the bar. Over the years, I’ve been a member of a great many bar associations. I’m no longer a member of any.
That option isn’t available to lawyers in North Dakota.
The case began when Arnold Fleck, a North Dakota lawyer, sued his state bar association after he learned it had contributed $50,000 to oppose a state ballot measure. Fleck had contributed $1,000 to support the same measure. He objected to being compelled by state law to pay $380 a year to support the bar association.
The function of bar admission and regulation has been “outsourced” in some jurisdictions to their state bar associations. While there are 19 states where the function is performed internally, the rest require lawyers to be member of the bar association, private organizations to whom states have delegated a public function.
Except they were still private associations otherwise, and as such engaged in the sort of conduct that associations are wont to do, such as staking out positions, supporting ideological and political positions and handing out money to their favored causes. And what if their causes weren’t your causes, and you were a lawyer and thus obliged to pay money for an association that stood for positions contrary to your views?
In June, Alito spoke for a 5-4 majority that struck down state laws in California and elsewhere that required teachers and other public employees to pay fees to support a union. In Janus vs. AFSCME, the court said that requirement violated the free-speech rights of employees who did not support the union.
The Janus decision was decried as a death blow to public sector unions, relieving bargaining unit members from having to also be union members based upon the individual’s right to not associate, not pay, for the union’s taking positions with which a person disagreed.
There were two ways to look at Janus, one being that unions would be stripped of their vitatily as free riders refused to pay dues while enjoying the benefits of the union-negotiated contracts. The other was that unions would have to “earn” their membership dues by providing the services that people found worthy of membership.
That case proved helpful to lawyers challenging mandatory bar association fees based on the same principle. In a brief order on Monday, the court overturned a ruling last year by the U.S. 8th Circuit Court of Appeals that had upheld mandatory bar dues in North Dakota and sent the case back “for further consideration in light of Janus.”
The problem isn’t that the organization that was managing the admission and regulatory function was called the state “bar association,” but that it was run by lawyers who, in the exercise of personal choices, couldn’t resist the impulse to use their official positions, the standing of the association, to further their personal choices. It might be considered “mission creep,” or arrogance, or to those who agreed with the political and ideological actions, it was beyond question that the bar association should stick its nose into politics because it was the “right thing to do.” Lawyers are no better divorcing their passion from reason than anyone else.
Does this spell the collapse of bar associations? That’s up to the states and the bar associations. Those states who chose to leave it to private organizations to do their job may have to reconsider whether attorney admission and regulation is a state function or the job for a political party.
As for bar associations, they will need to decide whether their mission is to serve the bar or to serve political causes, hoping that enough members approve to fund their indulgence. But what should not be permitted is that lawyers are required to join bar associations to maintain their professional licensure while being forced to associate with, and pay for, a group whose ideology they find repugnant.
But what if the lawyers aren’t required to pay dues, and yet the associations remain in control of public functions while engaging in private and highly partisan causes? Bear in mind that the American Bar Association, whose financial viability is very much in doubt, has gone full SJW while charged with the accreditation of law schools. Lawyers have fled the association in droves since it neither provides much value to its members and has been captured by the woke, who see no issue with its becoming an arm of the progressive party. It no longer has enough members to financially sustain itself.
Is this the fate of state bar associations as well, should they be subject to the same limitations as imposed on public sector unions by Janus? It’s understandable that states put the onus on professional associations to regulate their profession. That’s part of the nature of professionalism, self-regulation, and who better to decide than the members of the profession itself?
But once bar associations decided to leave their lane, to drift away from the limits of professional practice and ethics, and become “leaders” of causes like social justice, they chose to side with some members and against others. And the ABA provides a fairly clear idea of how lawyers reacted to the political shift. While believers in the cause were absolutely certain that they were right and lawyers who rejected their ideology were wrong (and, as is the way these days, evil), that didn’t make the lawyers who didn’t believe feel any better about digging into their pockets to pay for the childish indulgences of the woke.
Some would argue that the functions of bar associations, admission and regulation, are themselves archaic. Kind of an “open borders” for lawyers. If so, then the demise of involuntary bar associations will not be as much of a problem, though it means lawyers won’t be able to win awards at gala dinners to show their clients. Either way, lawyers shouldn’t be compelled to be members of groups who stand for things they dispute, and pay for the privilege.