- A Q&A with University of Connecticut School of Law Professor Leslie Levin
- Two perspectives pieces—one urging the WSBA to retain its current structure, and one calling for structural change
- A timeline of the history of the regulation of the practice of law in Washington
- Update on ETHOS (Examining the Historical and Organizational Structure of the Bar)
A Q&A with Leslie Levin
This Q&A is based on an article entitled “The End of Mandatory State Bars?,” 109 Georgetown L. Rev. Online 1 (2020), written by Professor Leslie Levin.
Professor Leslie Levin, the Hugh Macgill Professor of Law at the University of Connecticut School of Law, is an expert on the legal profession, ethical decision making, and lawyer discipline. In her article “The End of Mandatory State Bars?,” she posits that the country’s 31 mandatory state bars “are facing an existential threat” following the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME.11Janus v. AFSCME, 585 U.S. _, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018). She offers her scholarly insights, excerpted from her article, here for members.
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Q. Can you briefly summarize the legal challenges to mandatory bars and how the U.S. Supreme Court has addressed them most recently?
A. The chief objections to compelled membership have been based on freedom of association and freedom of speech grounds.
1961: Lathrop v. Donohue.22 Lathrop v. Donohue, 367 U.S. 820 (1961). The Court rejected a Wisconsin lawyer’s claim that he could not be compelled to join and support a state bar association which expressed opinions on, and attempted to influence, legislation. The Court relied on its earlier decision in Railway Employees’ Department v. Hanson,33 Railways Employees’ Department v. Hanson, 351 U.S. 225 (1956). in which it held that the Railway Labor Act did not abridge railroad employees’ rights of association by authorizing agreements that effectively conditioned employees’ continued employment on the payment of union dues.
1990: Keller v. State Bar of California.44 Keller v. State Bar of California, 496 U.S. 1 (1990). The Court considered a claim that use of petitioners’ mandatory state bar dues to finance ideological or political activities with which petitioners did not agree violated their First and 14th Amendment rights. The Keller Court noted the “substantial analogy” between the relationship of the state bar and its members and the relationship of employee unions and their members. It discussed its 1977 decision in Abood v. Detroit Board of Education,55 Abood v. Detroit Board of Education, 431 U.S. 209 (1977). in which nonunion workers challenged requirements that they pay agency shop dues to the union; the Abood Court held that it would violate the workers’ First Amendment rights to use those dues to fund the expression of political or ideological views not germane to the union’s duties as the collective bargaining representative. Relying on Abood, the Keller Court unanimously held that the California State Bar could constitutionally use bar dues to fund activities related to the goals of regulating the legal profession and improving the quality of legal services but not to endorse or advance other political or ideological issues.
2018: Janus v. AFSCME. The Court considered whether an Illinois statute that required public employees to pay agency fees to a union that took collective bargaining and other positions with which the petitioners disagreed violated their First Amendment rights by compelling them to subsidize private speech on matters of substantial public concern. The Court applied an “exacting scrutiny” standard when judging the constitutionality of the compelled agency fees, and explained the standard requires that a compelled subsidy of speech “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.” The Court found that the state’s compelling interest in “labor peace” could readily be achieved through significantly less restrictive means than assessment of agency fees. It pointed to the United States Postal Service employment experience, which it believed demonstrated that an exclusive union representative can work effectively for employees without assessing agency fees. In its 5-4 decision, the Court held that public sector unions could no longer extract agency fees from nonconsenting employees. In reaching this result, the majority overruled Abood, finding it “poorly reasoned,” and inconsistent with its other First Amendment cases.
Mandatory state bars in Louisiana, Michigan, North Dakota, Oklahoma, Oregon, Texas, Utah, and Wisconsin have faced constitutional challenges based on the reasoning in Janus.
UPDATE: The U.S. Supreme Court on April 4, 2022, denied certiorari in three cases challenging the integrated-bar structure: Taylor v. Heath66Taylor v. Heath, 4 F.4th 406 (6th Cir. 2021). (Michigan), Schell v. Darby77 Schell v. Darby, 11 F.4th 1178 (10th Cir. 2021). (Oklahoma), and McDonald v. Firth88 McDonald v. Firth, 4 F.4th 229 (5th Cir. 2021). (Texas).
Q. What do you see as the main issues when considering whether the mandatory state bar model is constitutional?
A. The first issue is whether there is a compelling state interest in maintaining mandatory bars. In the Supreme Court’s 2014 decision in Harris v. Quinn,99 Harris v. Quinn, 573 U.S. 616 (2014). it indicated that mandatory dues serve a compelling government purpose, which includes the “State’s interest in regulating the legal profession and improving the quality of legal services” and “a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.
So even if the states’ interests identified by the Court in Keller and in Harris are deemed “compelling,” mandatory bars will need to show that those interests cannot be achieved by significantly less restrictive means than compelled dues payments. In my opinion, it will be difficult for mandatory bars to demonstrate that they are demonstrably better than voluntary bars at regulating the legal profession and improving the quality of legal services for the public. Both mandatory and voluntary bars promote access to justice initiatives and provide CLEs and other professional development opportunities to improve lawyers’ performance. States with voluntary state bars do not appear to have more lawyers who perform poorly in practice than states with mandatory bars.
Moreover, in the jurisdictions with voluntary state bars, states use lawyer registration fees, bar application fees, and other bar-related fees paid by lawyers to fund lawyer discipline and other regulation. In other words, the counterargument will be that there are other ways to achieve the state interest in having lawyers pay for their own regulation.
Q. Who benefits from mandatory bars?
A. Originally, proponents of mandatory state bars argued that they would benefit both lawyers and the public, but there have been few efforts to closely examine who benefits from mandatory bars. It’s critical to do so, not only for public policy reasons, but because the question of whether the public actually benefits from mandatory bars is directly relevant to the question of whether there is a compelling state interest in maintaining mandatory bars.
Q. How can mandatory bars benefit lawyers?
A. Belonging to any type of bar association often provides lawyers with educational and other benefits. In addition, because of their size, stature, and financial resources, mandatory bars can be a powerful voice for lawyer interests, enabling lawyers to be deeply involved in the regulation of the profession. State bars’ official or quasi-official role in the rulemaking process often allows them to set the rulemaking agenda, define the issues and scope of issues they will study, exert control by determining who serves on the committees that consider the issues, and prevent proposals or recommendations from proceeding to the court for consideration.
Q. Is there anything surprising you have found during your research?
A. I was surprised to realize how many regulatory functions have moved out of the mandatory bars in some states. I was also surprised by how constrained some mandatory state bars are in their ability to advocate for changes in the law on a broad range of important issues. As a result, state legislatures are sometimes deprived of the expertise of the state bar when they consider new legislation.
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Definition, numbers, and functions
- Bars to which lawyers are required to pay dues and belong as a condition of bar licensure.
Often established as state agencies or public corporations that are instrumentalities of the judiciary or the state supreme court. Employ professional staff to perform much of the regulatory work.
- Work to advance lawyers’ interests while also performing some regulatory functions such as admission, discipline, or other licensing requirements. Missions include improving the administration of justice and protecting the public.
- Perform many of the same functions as voluntary bars with respect to: socializing lawyers into the norms of the legal profession, educating lawyers about changes in the law, supporting them in their work, providing networking opportunities and member benefits such as discounts for professional services, playing a role in the development and adoption of the law governing lawyers, and advocating for lawyers’ economic interests.
- Significantly constrained in their ability to advocate on issues not directly related to the legal profession.
- Mandatory bars are established in 31 states and the District of Columbia:
– Only eight1010 Operating under the delegated authority of the Washington Supreme Court, the Washington State Bar Association administers the bar admission process, including the bar exam; provides record-keeping and licensing functions; and administers the professional discipline system. retain some responsibility for both bar admission and discipline and other regulatory functions, such as administering a Client Protection Fund (CPF).
– Sixteen have some responsibility for administering either bar admission or lawyer discipline and other regulatory activities.
– Eight perform only limited regulatory functions, such as administering a CPF, fee dispute arbitration, or mandatory CLE.
Voluntary state bars
Definition and functions
- Are composed of some portion of the state’s licensed lawyers.
- Missions focus primarily on lawyers’ interests and secondarily on improving the administration of justice.
- Freer to advocate on a wide variety of issues affecting clients and the public; often draft and support a broad range of legislation.
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1. Janus v. AFSCME, 585 U.S. _, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018).
2. Lathrop v. Donohue, 367 U.S. 820 (1961).
3. Railways Employees’ Department v. Hanson, 351 U.S. 225 (1956).
4. Keller v. State Bar of California, 496 U.S. 1 (1990).
5. Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
6. Taylor v. Heath, 4 F.4th 406 (6th Cir. 2021).
7. Schell v. Darby, 11 F.4th 1178 (10th Cir. 2021).
8. McDonald v. Firth, 4 F.4th 229 (5th Cir. 2021).
9. Harris v. Quinn, 573 U.S. 616 (2014).
10. Operating under the delegated authority of the Washington Supreme Court, the Washington State Bar Association administers the bar admission process, including the bar exam; provides record-keeping and licensing functions; and administers the professional discipline system.
Mandatory Bar Structure: If It Ain’t Broke, Don’t Change It
BY NANCY HAWKINS
The WSBA has examined its governance structure several times over the years. Another such examination is currently underway, at the request of the Washington Supreme Court. I urge the WSBA to maintain its current status as an integrated and mandatory bar association, and I urge you to support that structure. Why? To quote Winston Churchill, “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.” In other words, complain about our system all you want, but the alternatives are worse for members and the public.
The so-called “experts” on bar association structure have been predicting doom and gloom about our structure for years. Nothing that was predicted has come true. No court has struck down our structure. In fact, just this year, the U.S. Supreme Court denied certiorari on three cases that challenged bar association structures in Texas, Michigan and Oklahoma. Significantly, the WSBA structure is better than the structures that were in place in each of those states. Our structure is sound because of our differences with those (and other) states. For those who have not looked at the WSBA’s actual activities (and not just at the death and discipline notices in Bar News!), the WSBA is not a political organization. It does not endorse political candidates. It does not contribute funds to political candidates. Indeed, it cannot do any of these things, under GR 12.
We are and should continue to be a nationwide leader in giving members the option of a license fee deduction (Keller deduction) for any costs associated with a WSBA program or activity that is not “germane” to our mission. Each year, the WSBA determines whether any funds have been spent on possibly non-germane activities and calculates the amount—called the Keller deduction—that members may deduct from their license fees. The process is easily exercised and does not require independent argument by members. The WSBA’s calculations of the amount of the Keller deduction are made public. https://www.wsba.org/for-legal-professionals/license-renewal/keller-deduction. Members can challenge the amount of the Keller deduction, as has been done (rarely) over the years but, again, this is not required before taking the calculated deduction.
I have heard many suggestions for changing the structure of the WSBA. A frequent one is to eliminate every program or activity that is not directly related to the licensing or discipline of Bar members and turn those regulatory functions over to the state of Washington, abandoning the long tradition of law as a self-regulating profession. The claim is that this will be more efficient and reduce member license fees. This is a myth, both practically and financially. Because the vast majority of the work of the WSBA is related to licensing and discipline, there would likely be little reduction in license fees to fund this work, whether such fees are paid to the state of Washington or to the WSBA. Even more problematic, there would likely be no increase in efficiency. In some states that have done so, such as California, overall costs have increased, not decreased.
Another frequent suggestion is to separate the WSBA practice sections from the larger WSBA, so the sections would be “free” to do what they want and so that license fees would be reduced. First, sections are voluntary and supported by voluntary section dues and other non-mandatory payments, so there would be no effect on WSBA member license fees. While WSBA staff provide assistance, sections pay for that assistance through a per-member charge and splits of product profits. Even more significantly, many section members (including me) have spoken in opposition to a change in this structure. I am convinced that separating sections from the WSBA will lead to the demise of most sections and duplication of costs and administrative efforts for those that survive. This won’t just hurt the attorneys practicing in those lost sections, it will hurt all of the sections. Sections want to succeed in their individual endeavors, but they also want to be a resource for ideas and strategies to each other within the larger WSBA structure.
Another reason I’ve heard advanced for changing the structure of the Bar is that the WSBA is too Seattle-centric. Of course, the vast majority of the Bar membership is found in the Seattle and Puget Sound region. These numbers mirror the population distribution in Washington state, so this is not a surprise. The WSBA cannot change this reality by changing its structure. The Bar’s present structure, with members of the Board of Governors elected from every congressional district, incorporates representation from all parts of Washington. There are also policies in place that encourage geographic diversity in section leadership. The WSBA takes geographic diversity seriously. It also takes the issue of diversity seriously. Those in leadership and at all levels of the organization are committed to learning from one another and from members as to issues in all parts of the state in need of our attention. For example, one recently developed WSBA project called STAR (Small Town and Rural Committee) was designed to help rural areas that lack sufficient numbers of lawyers to meet community legal needs.
The WSBA structure is sound. The vast majority of WSBA funds go toward the costs of licensing, regulation, and discipline of Bar members. The WSBA also funds and works on programs that benefit the state through activities such as studying court rules to identify needs for change to improve functionality and identify barriers to litigants within court systems (particularly around technology issues). In addition, the WSBA works on issues of diversity and inclusion in an effort to encourage and support a more diverse legal profession and meet the needs of diverse litigants. These programs are part of the state’s compelling interest to allow mandatory and integrated bar associations; they work to protect the public and uphold the integrity of the profession in a way that a voluntary bar cannot.
Voluntary Bar Structure: ‘A Different Approach for the Future’
BY KING COUNTY BAR ASSOCIATION & JAMES A. BAMBERGER
In September 2018, the Washington Supreme Court announced it would undertake a “comprehensive review of the structure of the bar” in light of recent case law with First Amendment and antitrust implications for bar associations. In November 2018, the court provided a charter for a 10-member Bar Structure Work Group to review the WSBA’s structure and make a recommendation back to the court in six to eight months. On Sept. 4, 2019, the Work Group completed its final report, including a minority report. On Sept. 25, 2019, the Washington Supreme Court issued a response to the Work Group’s final report that recommended the WSBA’s integrated structure be retained.
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The following is the text of a letter that the King County Bar Association (KCBA) submitted to the Washington Supreme Court on August 27, 2019, with regard to the recommendation from the Bar Structure Work Group. The KCBA continues to stand by the proposals included in its August 2019 letter.
We write, in the spirit of amicus curiae, to ask the court to consider a different approach for the future of our Washington State Bar Association than the recommendation from the Bar Structure Work Group to retain the existing structure. Specifically, we believe the legal profession and the public would be best served if the court proceeds with a comprehensive restructure of the Washington State Bar Association that proactively protects the access to justice and diversity work of the WSBA.
Founded in 1886, the King County Bar Association represents over 14,000 attorneys, judges, law professors, and law students in King County. Our mission is to support our diverse membership by promoting a just, collegial, and accessible legal system and profession; to work with the judiciary to achieve excellence in the administration of justice; and to serve our local community through organized pro bono legal services.
Like the court, the King County Bar Association is a strong proponent of the important work being facilitated by the WSBA in the areas of access to justice and diversity that benefits our state’s justice system. However, we are concerned that the successes and pending efforts underway in access to justice and diversity may be threatened if the court does not take affirmative steps to protect these functions by exercising the court’s plenary leadership role and directing a new structure for the WSBA.
Our analysis of recent events both in Washington state and across the country is that momentum will continue to grow nationwide to bifurcate mandatory bar associations. Whether rooted over issues of compelled speech, antitrust and unfair trade practices, or political considerations, the result is the same. The structure of mandatory bar associations is under scrutiny from both federal courts and state legislatures (including our own elected officials in Olympia). Most recently we have witnessed our colleagues in California, the largest state bar in the nation, endure a crisis in leadership and vision for the profession before the solution of a bifurcated bar structure was adopted in 2018. The pending State Bar Association of North Dakota appeal most likely will result in a forced decision of these questions for remaining mandatory bar associations by the U.S. Supreme Court.111 The U.S. Supreme Court vacated the decision in Fleck v. Wetch, 139 S. Ct. 590 (2018), and remanded the case for further consideration in light of Janus. In 2019, the Eighth Circuit again ruled for the defendants, essentially on procedural grounds. Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019), cert. denied, 2020 WL 1124433 (mem.) (Mar. 9, 2020) (No. 19-670).
The Washington Supreme Court, along with the state’s legal profession, has the opportunity to act now to protect the things that matter most to us in Washington, rather than be forced to react to solutions imposed from other branches of government whether based in Olympia or Washington, D.C. Action now would also demonstrate to the legal profession that the court has heard the underlying messages of discontent by lawyers across the state with the status quo.
We propose that these three principles be adopted by the court:
1. Regulation of the practice of law best done by the court. We recommend moving the mandatory functions of the WSBA to a new Supreme Court-overseen entity similar to the Administrative Office of the Courts. This new office would have responsibility for all attorney, LLLT, and LPO licensing, as well as discipline, MCLE regulation (not course offerings), and client protection functions of the WSBA and would be funded by a court-imposed license fee. A court-appointed advisory committee could oversee this work with relevant current WSBA staff reassigned to this entity.
2. Access to justice and diversity are judicial system responsibilities. The court and the WSBA have achieved important successes with these initiatives that are currently funded by license fees and managed by the WSBA. Yet so long as they are tied to the license fee, even with tweaks to what is included in a “Keller” deduction, they are still at risk in the future. We believe access to justice and diversity should not be solely the responsibility of licensees, but instead a core function of society as a whole. Instead of housing these activities within the WSBA, we suggest these functions become Supreme Court-administered commissions such as the current Gender & Justice Commission, elevating them to the prominence they deserve. Funding should come not from license fees but instead should be treated as a judicial branch operation, fully funded by legislative appropriation. The cost would be minimal in the context of the judicial branch overall budget. This approach protects these activities from challenges by licensees or others, including the U.S. Supreme Court.
3. Non-mandatory activities are best served in a new statewide voluntary bar organization. Remaining activities currently conducted by the WSBA (e.g., sections, publications, YLD, awards, and judicial evaluation to name but a few) should be transferred to a voluntary statewide nonprofit that is funded by voluntary dues and overseen by attorneys themselves, independent of the court. This organization would serve as the bar’s “trade association,” promoting the interests and needs of member attorneys without conflicting responsibilities for nonmember-focused efforts. The current leadership of the WSBA could oversee this refocused organization and take it to new levels of success.
We appreciate that our proposal would require significant planning and organization to implement, but we do not believe these challenges are insurmountable. Utilizing a small amount of WSBA reserve funds the court could hire qualified professionals to design a plan to implement these changes and conduct the transition. The court need adopt only the three broad principles we propose and then task professionals to proceed with the implementation. KCBA stands ready to actively participate in and support this work.
The Washington Supreme Court has the ability to create a nationally recognized best practices model for the regulation of the practice of law and the administration of justice—just as it did when it innovatively launched programs here such as the Access to Justice Board. We call on the court to resist the status quo of a single mandatory bar structure and instead adopt a bold forward-thinking vision that protects those programs in which we all believe so strongly.
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James A. Bamberger’s letter, in part:
I have reviewed the very thoughtful August 27, 2019, letter sent by the King County Bar Association on this subject. In the interest of brevity, I adopt the analysis and recommendations set forth in that letter in their entirety. Whether by changes in GR 12 or otherwise, I encourage the Court to take action that is grounded in the three principles outlined in the KCBA letter and reject the “do-nothing-for-now” recommendation offered by the Structure Group.
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1. The U.S. Supreme Court vacated the decision in Fleck v. Wetch, 139 S. Ct. 590 (2018), and remanded the case for further consideration in light of Janus. In 2019, the Eighth Circuit again ruled for the defendants, essentially on procedural grounds. Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019), cert. denied, 2020 WL 1124433 (mem.) (Mar. 9, 2020) (No. 19-670).
Brief History of the Regulation of the Practice of Law in Washington
Washington Bar Association established.
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Renamed the Washington State Bar Association.
Washington Supreme Court enacts Rules for Examination and Admission of Attorneys.
American Bar Association (ABA) adopts Canons of Professional Ethics at its annual meeting in Seattle.
Board of Law Examiners legislatively authorized for Bar application and examination process.
Board of Law Examiners regulatory role expanded.
. . .
ABA Code of Ethics adopted.
State Bar Association of North Dakota becomes first legislatively created unified bar.
Nine states follow suit between 1921 and 1932.
The WSBA proposes State Bar Act.
Legislature adopts State Bar Act:
Membership to WSBA becomes mandatory and regulatory functions are assigned to the WSBA.
Two important separation-of-powers cases are decided.*
*NOTE: The first regarding the Legislature’s power to audit Bar-collected funds and the second about escrow agents and the practice of law.
WA Supreme Court adopts General Rule (GR) 12. Sets forth WSBA general purposes, as well as specific activities authorized and prohibited.
WA Supreme Court adopts GR 24 defining the practice of law and GR 25 creating the Practice of Law Board.
GR 12 amended to delegate authority to the WSBA to administer certain boards and committees established by court rule or order.
Board of Governors votes 7-6 not to recommend separating the lawyer discipline system from the WSBA.
GR 12 amended to state that the license fee amount is subject to review and modification by the Washington Supreme Court.
ALSO IN 2013: Nebraska State Bar Association ordered to semi-deunify. The State Bar of California legislatively deunifies in 2017 with creation of the California Lawyers Association.
Board Governance Task Force makes multiple recommendations, including to “repeal most provisions of the State Bar Act.” Board Work Group concludes those changes unnecessary.
GR 12 amended again: WA Supreme Court also adopts ABA Model Regulatory Objectives as
WA Supreme Court Bar Structure Work Group formed.
Board of Governors launches process for Examining the Historical Organization and Structure of the WSBA (ETHOS).
ETHOS (Examining the Historical and Organizational Structure of the Bar) Update
In light of recent constitutional challenges to integrated bar associations across the country, the Washington Supreme Court has asked the WSBA Board of Governors to consider three questions and make a recommendation back:
1. Does current federal litigation regarding the constitutionality of integrated bars require the WSBA to make a structure change?
2. Even if the WSBA does not have to alter its structure now, what is the contingency plan if the U.S. Supreme Court does issue a ruling that forces a change?
3. Litigation aside, what is the ideal structure for the WSBA to accomplish its mission?
The Board of Governors named the study process ETHOS—Examining the Historical Organization and Structure of the Bar. There will be eight full-day meetings between January and August 2022—open to the public via Zoom and in person at the WSBA offices—to gather information and build a common understanding of the issue, to explore other bar structures, and to form a recommendation. Throughout each phase, the Board has committed to gathering wide stakeholder feedback. In addition to specific outreach opportunities and comment periods during meetings, you can send feedback to email@example.com. The next meetings are June 18 and July 23.