January 23, 2018

Challenging the mandatory government bar

By Deborah J. La Fetra Senior Attorney

Do states require drinkers to buy their scotch and sodas at a government-run bar? Well, no. But 31 states do require all attorneys to belong to a government-run bar association as a condition for practicing law. Arnold Fleck, a North Dakota lawyer, is asking the U.S. Supreme Court to free him from his forced association with the State Bar Association of North Dakota. PLF, which has long supported attorneys’ efforts to refrain from subsidizing the political and ideological activities of state bar associations, filed an amicus brief supporting the petition in Fleck v. Wetch.

The Supreme Court first gave its stamp of approval to mandatory state bar associations (sometimes called “integrated” or “unified” bars) in a 1961 case, Lathrop v. Donohue, and reiterated its belief that this forced association justified infringement objecting attorneys’ First Amendment rights in Keller v. State Bar of California (which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes). The Supreme Court made certain assumptions when it decided those cases, among them that state bar associations were well-suited to competently regulate the legal profession. Whatever may have been the case in 1961, subsequent years have not borne out that ideal. Just as the currently pending case of Janus v. AFSCME reconsiders the Court’s premises underlying Abood v. Detroit Board of Education that reflected an unrealistic view of public employee unions, the Fleck case demonstrates that Lathrop and Keller failed to appreciate the increasing and pervasive politicization of state bar associations, and also overestimated the ability of a unified bar to be a careful steward of mandatory dues.

As described in the brief, PLF attorneys represented the Keller petitioners, and, after the Court held that the State Bar of California could not require attorneys to subsidize its political and ideological activities, PLF attorneys continued representing objecting bar members for another decade to enforce the Court’s decision. After eighteen years total litigation, the situation for California attorneys is now little better than before Keller. The State Bar continues to pursue political ends, works to ensure that objectors get the smallest possible dues deduction after jumping through the greatest number of hoops to claim it, and engages in financial shenanigans that constantly draw the attention – and ire – of the state auditor. Many attorneys have abundant reasons to resent subsidizing and associating with the government’s mandatory bar association. PLF urges the Court to grant the Fleck petition to revisit whether the Constitution allows states to coerce attorneys into association with a government bar and, if so, whether the government bar may (unlike any other constitutional infringement) presume objectors’ acquiescence until they complain.

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Janus v. American Federation of State, County & Municipal Employees, Council 31

The Illinois Public Labor Relations Act authorized public employee unions to collect “fair share” or “agency shop” fees from nonmember employees. Allowed under the 1977 Supreme Court decision in Abood v. Detroit Board of Education, the Illinois law allowed the AFSCME union to steal $535 per year from Mark Janus and every nonunion employee. Janus sued, arguing the law violates the First Amendment. PLF and an array of allies filed a friend-of-the-court brief in support of Janus at the U.S. Supreme Court. And in a 5—4 decision announced June 27, 2018, the High Court overruled Abood, agreeing with Janus that the 1977 ruling is incompatible with the First Amendment.

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