MANDATORY
BAR
Bar experts
discuss merits of mandatory, voluntary bars
By
Jane Pribek
Wisconsin Law Journal
July
13, 2005
Part
2 of 2
 |
| Ted
Schneyer
|
Madison
lawyer Steven A. Levine recently made State Bar of Wisconsin history, when he
entered the race for State Bar president-elect on his own accord and won.
He
ran primarily on the issue of wanting to convert of the state's mandatory bar
association into one that is voluntary.
Wisconsin
Law Journal talked to a pair of experts on bar associations to get a big-picture
view of state bars. We learned that no mandatory bar in the U.S. has ever returned
to a voluntary bar on a long-term basis. Therefore, if Levine achieves his goal,
he will make history again, this time on a national scale.
An
Overview of State Bars
Elizabeth
M. Derrico has been in bar association work for the past 21 years, the past 10
of which she has spent working as the associate director of the American Bar Association's
Division for Bar Services in Chicago. In that capacity, she serves as a liaison
between the ABA and state and local bar associations throughout the country. Her
division additionally serves as a clearinghouse of sorts for information for bar
associations.
From
a 1997 survey of mandatory bar associations in the ABA's Bar Leader magazine,
Derrico explains that the oldest bar associations in the U.S. all started out
as voluntary organizations. The concept of "unifying" them began to
take hold in the 1920s. The first state bar to become mandatory — also called
"unified" or "integrated" — was North Dakota in 1921.
One of the central goals of unification, per the study, was lawyer regulation.
But
the unification movement was also sparked in part by a desire to boost membership
rolls for state bar associations, says Prof. Ted Schneyer. He explains, "As
opposed to local bar associations of the large metropolitan areas, the state bars
were having a hard time getting a substantial percentage of the bar on board.
It was a systemic restriction on what they could accomplish."
Among
Schneyer's teaching duties at the University of Arizona Rogers College of Law
is a course on the legal profession. Previously, he taught at the University of
Wisconsin Law School. He is a long-time critic of mandatory bars.
He
continues that the earliest unified bars were created by state legislatures. In
the 1930s, however, the tide began to turn, with lawmakers delegating that decision
to state judiciaries, or judiciaries asserting their own inherent authority to
order unification.
Wisconsin's
bar became unified in 1956. In 1988, per a federal district court order in a lawsuit
brought by Levine, the bar's mandatory status was abolished, but the appeals court
reversed that decision. In 1992, the mandatory bar was reinstated.
These
days, according to Derrico, there are 34 mandatory state bars in the U.S. Three
other state bar associations are "hybrids" of sorts; they are Virginia,
West Virginia and North Carolina. In North Carolina, for example, there is both
a mandatory bar that solely handles lawyer regulation, as well as a voluntary
bar. The balance of the nation's state bars is voluntary; most of them are Midwestern
or Eastern states. As for Wisconsin, it is surrounded by states with voluntary
bars, except for Michigan.
Derrico
says the Bar Leader survey of mandatory bars concluded that there is great variety
in the "core functions" they perform. How individual bar associations
have evolved depends upon a number of factors, including how they were created,
the size of the population of the state, how many law schools are located within
the state, etc.
Some
states, such as California, have state bars that are empowered by the legislature,
and therefore lawmakers there would likely decide whether the bar should remain
mandatory or change over to a voluntary organization. In Wisconsin, however, where
the bar was established by Supreme Court rule, the judiciary would be the ultimate
arbiter of whether bar membership is compulsory.
To
the best of Derrico and Schneyer's knowledge, none of the efforts to change a
mandatory state bar into a voluntary organization have succeeded. Two of the most
recent challenges have taken place in Florida and New Hampshire.
In
2001, Florida lawmakers considered legislation to alter the state constitution
to split regulation of lawyers between the legislative and judicial branches of
government, eliminating the bar association's authority as a unified bar. The
measure died in committee, however.
Then
in 2003 in New Hampshire, a retired lawyer/legislator led the charge to pass a
law that would require the bar to conduct a referendum of its membership on the
issue of its compulsory nature and be bound by that vote. The next year, the high
court there, which had unified its bar in 1968, declared that law unconstitutional
as it "encroaches upon inherent judicial authority." The referendum
had already taken place, and the state's lawyers had voted to keep the bar mandatory.
Nonetheless, another bill is pending before the New Hampshire Legislature to repeal
the corporate charter of the bar.
What's
in Store for Wisconsin?
While
campaigning, Levine, of the Wisconsin Public Service Commission, couched his concerns
about the current State Bar of Wisconsin in the framework of whether the association
provides the "two state interests" that are required of unified bars,
per the U.S. Supreme Court's landmark decision in Keller v. State Bar of California,
496 U.S. 1 (1990). They are "regulating the legal profession and improving
the quality of legal service available to the people of the state."
First,
the Office of Lawyer Regulation exclusively handles attorney discipline in Wisconsin,
Levine reasoned. Second, he maintained that since lawyers must pay for State Bar
continuing legal education in addition to their mandatory dues, the bar is not
providing that service in accordance with Keller.
As
to the first state interest for mandatory bars identified in Keller, some unified
state bar associations are "uber-regulatory," says Derrico. They include
the North Carolina State Bar Association, and the bar associations of Alaska,
Idaho, Oregon, Califor-nia and the District of Columbia. Meanwhile, others play
virtually no role in ethics enforcement. Wisconsin comes to mind, along with Rhode
Island, New Mexico and New Hampshire.
As
to the second state interest, Schneyer says that the bar could likely point to
other programs and services it provides "improving the quality of legal service,"
such as its ethics hotline or lawyer assistance program. It simply depends upon
how broadly one wishes to define that concept.
In
addition, Schneyer served on a study committee for the Wisconsin Supreme Court
back in 1970s that examined unified versus voluntary bars. That committee considered
the role of continuing legal education within the mandatory bar framework, and
determined it was an acceptable function for the State Bar to perform therein.
It was true back then, and remains the same today, that user fees, and not dues,
cover the bar's expenses for CLE. The committee concluded that it wouldn't be
fair to the lawyers who do not use bar CLE programs for their dues to subsidize
them, and the Wisconsin Supreme Court agreed with that notion.
Schneyer
concluded in 1983, as memorialized in a scholarly essay entitled, "The Incoherence
of the Unified Bar Concept: Generalizing from the Wisconsin Case," 1983 Am.Bar
Found. Res. J. 1, that proponents of unified bars cannot point to any hard evidence
to substantiate their claims that unified bars generally provide more or better
quality public service. Over two decades later, he is still of that mindset.
It's
not that he thinks unified bars are "terrible," he cautions. But voluntary
bar associations can be just as effective in providing services to lawyers and
the community. In fact, he might argue that they are preferable, in the respect
that members can "vote with their feet" if they are dissatisfied, and
bar leaders will not have to deal with tensions and dissent.
Derrico
won't take a position on whether the Wisconsin bar should shed its mandatory status.
Likewise, she doesn't take a stand on the merits of a mandatory versus a voluntary
bar anywhere; it depends upon what the lawyers and the general population of each
state say works best for them.
But,
she concludes, "I can say, without equivocation, that the Wisconsin bar has
always been on the cutting edge, and a role model for many other state bars, in
terms of its provision of services, the way it uses resources wisely, and its
outreach to solo and small-firm lawyers. It's well-administered and it has never
taken its members for granted."
State
Bar President D. Michael Guerin, of Gimbel, Reilly, Guerin & Brown in Milwaukee,
echoes Derrico's sentiments.
"I'm
convinced that once Steve Levine gets more involved in the bar as the year progresses,
he'll come to appreciate all the programs and services the bar provides, which
it does so well and without wasting members' resources. I am firmly convinced
that, say in a year or so, he will change his mind.
"I'm
very pleased to working with Steve. I have a great amount of respect for him.
He's a good guy, and I know we'll work well together.
"However,
speaking from my own experience, I can say that until I got more involved in the
bar, I took things like the lawyer assistance program, the ethics hotline, or
the law office management assistance program for granted. I assumed all state
bars had them. They don't. Not every lawyer directly benefits from every program;
but I believe everyone gets some indirect benefit from all the public service
programs and member services the bar offers.
"Our
Supreme Court, in SCR 10.02(2), has told us that our role extends beyond lawyer
discipline and CLE. In addition, the bar serves as the voice of the profession
to the public and before the court, and we are obligated to serve the public.
Frankly, I think that's a pretty good mandate."
Click
here for Part 1.
