Last January, I wrote an article about the possible impact of the Supreme Court decision in Janus v. American Federation of State, County and Municipal Employees on state bar associations.
As has been widely reported, last week, the Supreme Court actually issued its Opinion. And while the Opinion received much attention from the press with respect to its potential impact on unions, political contributions, free speech and the like, what has been missing from the analysis is the potential impact albeit indirectly that Janus could have on such entities as bar associations.
In my January article, I discussed the background of the case and the precedents. For years, the rule was that because non members of a public union enjoyed its benefits, even if they disagreed with some of the positions with respect to “matters of substantial public concern” taken by the Union, they could be forced to pay dues.
Under Janus, those benefiting from a union’s activities can not be forced to pay dues to it where the Union takes public positions which could be the subject of disagreement, leaving one to wonder why anyone would join a union or pay dues to it
As expected, the Janus opinion ended that. Under Janus, those benefiting from a union’s activities can not be forced to pay dues to it where the Union takes public positions which could be the subject of disagreement, leaving one to wonder why anyone would join a union or pay dues to it. It was this likelihood and the resulting decline in union membership and clout that many commentators focused on.
But What Does This Mean For Bar Associations?
The Supreme Court did not discuss or mention bar associations in its ruling. So on its face, it might be safe to conclude that Janus will have little impact on the practice of law or on the gatekeeper and regularity enfocers, the Bar associations. After all, unlike unions, bar associations ostensibly exist not to serve their members but to police them, and to insure that the public is protected from unscrupulous and dangerous practices.
(These associations, commonly called integrated or unified bars, are charged by the courts or the legislatures with responsibilities for regulating lawyers licensed to practice in their states. So, in some 36 states, you have to join the state bar and pay the fees if you want to practice. This also means that the bar association can effectively govern how and what you can and can’t do.)
Based on Janus, there there remain several reasons why state bar associations may need to be concerned:
- First, Judge Posner, writing for the 7th Circuit in the lower Court opinion, placed the bar association issue front and center: “ lots of organizations-such as many state bar associations-impose and depend on these kinds of fees, requiring people to pay them if they want to engage in certain work.” By not referencing state bars in its holding in Janus, it could be argued that the Court impliciedly agreed with the idea that Janus applies to bar and other professional associations.
“ lots of organizations-such as many state bar associations-impose and depend on these kinds of fees, requiring people to pay them if they want to engage in certain work.”
- Second, while much of the Opinion dealt with labor concepts and specific labor related statutes, the Opinion in fact hinged more on constitutional concepts than labor law. SCOTUS focused on the free speech right of an individual to not be compelled via fees to implicitedly speak for or vouch for the political, or public activities or positions of the association. Citing the lack of any “compelling need” for the public employee union to be protected by interfering with the free speech rights of non members, SCOTUS focused on the notion that free speech trumps organizational interests.
- The Court’s conclusion rested on fundamental first amendment protections: as the Court saw it, freedom of speech includes both the right to speak and to refrain from speaking; the right to not be part of an association is likewise protected, forced associations that burden protected speech are simply not permissible. The Court pointedly said, “compelling individuals to mouth support for views they find objectional violates [a] cardinal constitutional command and, in most contexts, any such effort would be universally condemned.” Pretty strong language the Court did not limit to just unions.
- Next, the court reiterated its previous articualted standard that the viability of mandatory fees was one of exacting scrutiny, i.e., the fees 1) must serve a compelling state interest that 2) couldn’t be served in any other less restrictive way. The Court held that the concept of labor peace, the problem of the free riders (those who get the benefit of union activities without paying dues) nor the role of unions in representing members in grievances proceeding wer sufficient to satisfy the exacting test. In one perhaps telling comment, the Court specifically pointed out that it would clearly be impermissible for a group of physicians who might lobby or speak out for its members to compel all doctors to pay fees to practice medicine. As the Court put it: the first amendment does not allow the government to make a person pay for another’s speech just because the government might agree with it. “We simply draw the line at allowing the government…require all employees to support the union irrespective of whether they share its views’. Pretty clear.
- The further test that the purpose served by mandatory fees could not be accomplished by less restive means also will prove to be a big issue for bar associations. The fact that many bar associations do not require membership is itself evidence of the less restrictive ways of serving public needs contemplated by the Court
- And its also of little comfort that bar associations are primairly perform a policing function. That fact doesn’t mean that bar associations don’t take position on matters of public interest—matters the Janus Court describe as being of “profound ‘value and concern to the public’” that its compelled members might feel strongly and differently about. The Court noted some examples in Janus of such public issue: budgetary issues, education, health care, and minority rights. That’s not much different than taking positions say with respect to access to justice issues and policies or, for that matter, law school training, certification of lawyers, fee splitting, unauthorized practice of law etc. Certainly lawyers could argue they do not support bar positions on any number of things that are vital to the public interest.
But a Bar Association Is Not a Union
Maybe so, maybe not. But I’m not sure it’s a distinction that matters. In many states, its an association you must belong to and pay dues to do practice law. It’s not like you have any other choice. And if you don’t comply, you are subject to fine, cease and desist and disbarment.
Clearly it could be argued that there is a compelling need for the state to insure that those who practice their professions-like law and medicine—meet certain standards. And its even possible to argue that the disciplinary rules and functions governing those professions serve the compelling need of protecting the public. But that’s different perhaps than requiring its members to pay dues and fees where they may not agree with what the bar is doing and the positions it is taking on many matters. Indeed, once your say the rules are in place to for the compelling interest of protecting the public, by definition, the matters that association deals with are of “profound value and concern to the public.”
Janus is not the only assault on state bar associations presently before SCOTUS. In another case pending before the supreme Court, Fleck v. Wetch, Fleck, a North Dakota lawyer, is specifically asking the U.S. Supreme Court to free him from his forced association with the State Bar Association of North Dakota. The Court very well good use Fleck as the vehicle to apply Janus’ concepts to bar associations.
Will the application of Janus finally force state bar associations to take a good hard look at what’s really important to the public?
What’s At Stake
Remember what’s at stake is not necessarily the bar associations themselves or even their policing functions. Its finances.
As I previously stated, bar associations depend on required fees to regulate the profession, to write ethics opinions, to investigate violations of the rules. If lawyers can opt out of paying the fees, bar associations would be forced to look to state legislatures, many of which are already strapped, for funding. Will state legislature be willing for fund enforcement of what many consider arcane rules that result in less access to justice not more? Will state judiciaries want to take over the function of bar associations in enforcing the rules? Do they have the resources?
Or will the application of Janus finally force state bar associations to take a good hard look at what’s really important to the public?
Clare Anderson @clareandy via Unsplash