EDITORIAL: Fight for your rights

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Only two of 40 State Bar governors in June voted against a bylaw that tramples members’ First Amendment rights.

The bylaw includes a procedure for the removal of a Board of Governors member or other officer of the bar if his or her conduct while in office is “contrary to the best interest of the State Bar.” That is a vague statement that allows for too much interpretation, and it prompted the two governors to cast nay votes.

But the bar has argued such a bylaw offers recourse in extreme situations, such as that involving a former Minnesota State Bar Association treasurer who was convicted of rape. If that happened in Wisconsin, some governors argue, the board would want the freedom to dismiss the member.

Of course, those governors conveniently ignore a Wisconsin Supreme Court rule that only active members of the bar may hold office. And the Office of Lawyer Regulation can recommend the revocation or suspension of an attorney convicted of a crime or other such unacceptable behavior.

So “conduct contrary to the best interest of the State Bar” must mean something more mundane.

And it is that possibility that has raised the First Amendment alarm.

Board Governor Steve Levine, who has called for a bylaw review by the Wisconsin Supreme Court, failed in his attempt to amend the bylaw before it passed. He wanted to make sure the board would not abuse its newfound power by preventing free speech, so he proposed: “Conduct outside office which is contrary to the best interest of the State Bar does not include speech, association, activity or advocacy which is protected by the First Amendment to the U.S. Constitution or the Free Speech Clause of the Wisconsin Constitution.”

Three governors recognized the common sense of Levine’s amendment; 34 did not.

Now, it is up to the state Supreme Court to decide. Levine’s review request is competing with an official State Bar petition that the justices adopt a rule that would support the removal procedure. According to Levine’s brief in opposition to that petition, “For a board of lawyers … to reject First Amendment protection for its members by a 91.89 percent margin is embarrassing, discouraging and does not give much confidence that the board will adequately protect the freedoms of its members.”

Levine is correct. The bylaw, if allowed to stand, would let the BOG, albeit by a 75 percent vote, remove an officer for voicing concerns contrary to the majority opinion of the bar.

That quashes the sort of healthy debate necessary for a group that wields extraordinary power over the rights and responsibilities of Wisconsin’s legal community.

Bar members in favor of the bylaw have said any concerns about an abuse of power should be handled in court, by a legal challenge brought by any person who claims his or her rights were violated.

But there is a less costly, less contentious solution. If the bar has no interest in stifling dissent, as State Bar President Pat Fiedler has insisted, then it should make its intention clear in the bylaw.

That simple act would prove the bar recognizes the importance of free speech and understands that asking people to trust that the board has good intentions is not good enough. And should the bar fail to provide such proof, then it is up to at least four of the seven justices to protect the rights that the Board of Governors has ignored.