The death knell for integrated bars?

Originally published by the Daily Journal, December 4, 2018.

Could last summer’s decision in Janus v. AFSCME (2018 DJDAR 6308), forbidding states from allowing unions to garnish wages of nonmember employees without their affirmative consent, sound the death knell of the integrated bar? That’s exactly what North Dakota lawyer Arnold Fleck asked the U.S. Supreme Court in Fleck v. Wetch, 17-886. Mr. Fleck filed a petition for writ of certiorari seeking to be freed from his forced association with the State Bar Association of North Dakota.

After considering the petition at eight consecutive conferences, the Supreme Court on Monday granted the petition, vacated the decision below, and remanded for reconsideration in light of Janus.

Like Janus, the Fleck case seeks to overturn outdated decisions that permit significant infringement on First Amendment rights. The Supreme Court approved statutes that force attorneys into centralized, government-run bar associations in Lathrop v. Donohue (1961), and reiterated the holding in dicta in Keller v. State Bar of California (1990), which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes. The court made certain assumptions when it decided those cases, among them that state bar associations were well-suited to competently regulate the legal profession and that this competence could justify the infringement on First Amendment rights of speech and association.

Whatever may have been the case in 1961, subsequent years have not borne out the Supreme Court’s idealized notion that the government is best positioned to regulate the legal profession when all lawyers are corralled into a single association. While the competency and effectiveness of unified bars may vary nationwide, the persistent incompetence and tribulations of the State Bar of California has been documented with depressing regularity by the state auditor.

Perhaps the most important role exercised by the State Bar of California is disciplining attorneys who fail to meet their professional responsibilities. Yet this function was performed by volunteers from local bar associations from the State Bar’s founding in 1927 until 1988, and later professionalization of the disciplinary apparatus within the mandatory bar did not improve its effectiveness or efficiency. The California state auditor, mandated by statute to report on the bar’s finances and programs, bluntly reported in June 2015 that “the State Bar has not consistently fulfilled its mission to protect the public from errant attorneys.”

For example, in 2010, under pressure to reduce its backlog of 5,174 disciplinary cases, the bar issued speedy slaps on the wrist to resolve two-thirds of the backlogged cases. The auditor found the settlements to be “inexcusably lenient.” The California Supreme Court agreed, returning 27 case files to the bar due to the appearance of insufficient levels of discipline. Only then did the bar impose greater discipline, including five disbarments. The auditor commented that this leniency held the “potential of significant risk to the public.”

The same report chastised the bar for failing to allocate more of its resources to improving the discipline system or ensuring it has sufficient staffing to handle complaints. Instead, the bar spent $76.6 million to purchase and renovate a building in Los Angeles in 2012, a purchase accomplished only through improper shuffling of funds and a lack of transparency to the Legislature.

As revealed by the auditor’s 2016 and 2017 reports, this financial mismanagement of members’ mandatory dues was not an isolated incident. It exemplifies perpetual problems with the State Bar that continue to this day. Lathrop and Keller failed to appreciate the increasing and pervasive politicization of mandatory state bar associations, and overestimated the ability of mandatory associations to be careful stewards of mandatory dues.

The bar association cases and the union subsidization cases are closely bound and frequently cite each other. Janus cannot be distinguished simply because it arose in the union context. Therefore, the Fleck remand requires the 8th U.S. Circuit Court of Appeals to determine how the overall principles enunciated in Janus apply to the concept of exclusive representation as it manifests in the mandatory bar context. While the 8th Circuit on remand cannot overrule Supreme Court cases, it is now bound to opine on whether the high court should do so—and set up the case for another visit to that court. The First Amendment principles outlined in Janus demand that no one should be forced into unwanted associations as the price of earning a living, including attorneys.

Pacific Legal Foundation filed amicus briefs in Janus and Fleck and directly represented the plaintiffs in Keller.