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Arbitration over State Bar dues underway after initial sputter

By: Erika Strebel, [email protected]//January 11, 2016//

Arbitration over State Bar dues underway after initial sputter

By: Erika Strebel, [email protected]//January 11, 2016//

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Despite a delay over the choice of an arbitrator, a dispute over mandatory State Bar dues is heading toward arbitration, with response briefs due Jan. 22.

In June, three lawyers decided to formally dispute the dues they were charged to support the bar during its 2016 fiscal year, which started July 1.

Specifically, the lawyers raised objections to the $5.25 that they are allowed to withhold in order to avoid supporting the bar’s various lobbying and political endeavors. All three bar members argue the amount should be higher.

One of them — Steve Levine, a former member of the bar’s Board of Governors and a frequent critic of the organization — is suggesting that it should be closer to $20.

The State Bar does not agree. Over the summer, it submitted a request to the Western District of Wisconsin to appoint an arbitrator. Judge William Conley turned to Howard Bellman, a Madison lawyer who specializes in mediation and arbitration.

Despite all those pieces being in places, the arbitration over the dues did not begin immediately. At the time he was appointed, Bellman was already an inactive member of the State Bar. Yet, to avoid a conflict of interest, he wanted to resign his membership before presiding over the arbitration.

Such a step cannot be taken immediately, said Bobbi Howell, a lawyer who represents the State Bar. Resigning from the State Bar, she said, requires a lawyer to first get the consent of the Wisconsin Supreme Court.

Moreover, said Levine, arbitration procedures could not officially begin until both parties had reached a stipulation on the facts, which also took some time.

The preliminary briefs were due in December.

There is no timeline governing when Bellman, in his capacity as an arbitrator, must make a decision, said Howell. She said Bellman, if he chooses, may ask the parties to prepare oral arguments or simply issue a written decision.

At the heart of the dispute is whether the State Bar can use mandatory dues to help pay for its lobbying of the state Legislature. Levine is arguing that the bar cannot do so because it neither regulates lawyers nor the legal profession in Wisconsin. Rather, the rules related to attorney ethics and legal education are enforced by either the Office of Lawyer Regulation or the Board of Bar Examiners. Attorneys in the state pay separate assessments to support both.

The bar counters by arguing that its lobbying expenses are in fact permissible under case law established by the U.S. Supreme Court’s decision in Keller vs. State Bar of California , the 7th Circuit’s 1996 decision in Thiel v. State Bar of Wisconsin and similar decisions.

In Keller, the Supreme Court held that state bars may not use mandatory dues to pay for political purposes unless the money is put, in some way, toward regulating the profession or improving legal services.

The current arbitration is just the latest skirmish in a decades-long fight between various legal professionals and the State Bar. Disputes of this sort have been going on since at least 1943, when membership in the bar was made mandatory for Wisconsin lawyers.

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