Tuesday, February 18, 2020

Are Laws Requiring Lawyers to Join (and Fund) State Bar Associations Unconstitutional?

By Eugene Volokh - February 18, 2020 at 08:01AM

Here are the questions presented in Fleck v. Wetch, now pending before the Supreme Court:

The Petitioner is an attorney who is required by state law to join and to fund a state bar association as a condition of practicing law. He challenged both compulsory membership and the compulsory funding of the association's political activities under the First Amendment. This Court vacated and remanded the previous judgment against him for consideration in light of Janus v. AFSCME, 138 S. Ct. 2448 (2018), whereupon the Court of Appeals reaffirmed its prior ruling in all respects, holding that "Janus does not alter our prior decision." Fleck v. Wetch, 937 F.3d 1112, 1118 (8th Cir. 2019) (App. 13a).

The questions presented are:

1. Are laws mandating membership in a state bar association subject to the same "exacting" First Amendment scrutiny that the Court prescribed for mandatory public-sector union fees in Janus?

2. Does it violate the First Amendment to presume that an attorney is willing to pay for a bar association's "non-chargeable" political and ideological speech, unless and until that attorney takes steps to opt out?

(The second question, as you might gather, is narrower than the first.) You can also see the responses and the reply brief here. It will be interesting to see whether the Court agrees to hear the case; for Will Baude's and my thinking on the issue, see pp. 196-98 of our Harvard Law Review article, "Compelled Subsidies and the First Amendment," which starts with this:

Compulsory bar dues have long been treated the same as public employee union agency fees. In Lathrop v. Donohue, the Court held that lawyers can be required to pay such dues, but in Keller v. State Bar of California, the Court held that the dues couldn't be used for political advocacy that wasn't "germane" to "the State's interest in regulating the legal profession and improving the quality of legal services." Keller thus tracks the old Abood rule, in which dues could be required but only for certain purposes.

Now that [after Janus] public employees can't be required to pay money at all to unions [and Abood has been in part overruled], we think the Court will say that lawyers can't be required to pay it to state bars either. After all, speech by the state bar is as likely as speech by unions to "touch fundamental questions of … policy," and more broadly to "have powerful political and civic consequences," even when it just has to do with regulating the legal profession.

Note that the petition doesn't challenge the state's power to decide who is allowed to practice law in the state, or to discipline or disbar lawyers. Each state Supreme Court would always have the power to maintain such licensing even without compulsory membership in a bar association.


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