MANDATORY BAR

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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.

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"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."

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