Labor unions and bar associations share certain traits: both are government-sanctioned cartels that require individuals to join and pay dues, and both use those member dues to engage in lobbying and other forms of political activity and speech. In the wake of the Supreme Court’s ruling last year in Janus v. AFSCME, declaring it unlawful for public-sector unions to require objecting employees to pay “agency fees,” lawyers around the country are beginning to challenge the obligation to pay dues to bar associations, regarding it as compelled speech in violation of the First Amendment. Lawsuits are pending in North Dakota, Oklahoma, Oregon, Wisconsin, and Texas. (Disclosure: I am one of the plaintiffs in the Texas case.)
The North Dakota case, Fleck v. Wetch, has already made it to the Supreme Court. In December 2018, after the Janus decision was handed down, the Court overturned an Eighth Circuit ruling that upheld mandatory bar dues in North Dakota and remanded Fleck “for further consideration in light of Janus.” Many observers interpreted the remand instructions as a strong signal that Janus applied to bar associations, contrary to the position argued by the North Dakota bar authorities.
Though unionized government employees vastly outnumber lawyers in the United States—7.2 million to about 1.3 million—the political influence of bar associations is significant, particularly in matters involving the legal system and the judiciary. As the Wall Street Journal recently observed, “the bar is not merely a professional organization that sets ethical standards and disciplines lawyers. It is a quasi-government enforcement body.” Due to their presumed expertise, bar groups are particularly influential when it comes to laws concerning the legal profession, which typically affect the public as well.
While 31 states require lawyers to belong to bar associations in order to practice law, 19 do not—proving that it is possible to regulate the legal profession without compelling financial support of political activities such as lobbying, proposing legislation, and taking positions on public-policy issues. First Amendment caselaw requires laws that infringe on speech to serve a “compelling state interest” and to use the “least restrictive means” for accomplishing that objective. The fact that many states operate without mandatory membership (and dues) to a bar association strongly suggests that compulsory support of political activities is unnecessary.
Janus overturned a 1977 precedent, Abood v. Detroit Board of Education, which the Supreme Court relied on in 1990 to uphold mandatory bar dues—subject to a rebate mechanism for objectors—in Keller v. State Bar of California. The current round of challengers contends that Janus and related cases narrowed the scope of Keller and that the 31 states requiring the payment of bar dues (not all of which provide for a Keller-style rebate) are in violation of the First Amendment.
Challengers to mandatory bar fees do not seek to deregulate the legal profession. Attorney licensure, discipline, client protection, and enforcement of ethics rules remain vital regulatory functions. Rather, the plaintiffs object to being compelled to provide financial support for the political activities of bar associations that they must join in order to practice law. Following the Janus decision, pursuant to the First Amendment, state bar groups should not be allowed to charge mandatory dues unless they confine themselves to non-political functions; voluntary groups, such as the American Bar Association, can spend their members’ dues however they wish. Lawyers are merely seeking the same protection that the Supreme Court has afforded government employees.