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Public Image Campaign is constitutional

The State Bar’s use of mandatory dues to fund the Public Image Campaign did not violate the First Amendment.

The Seventh Circuit on Thursday did agree in part with objecting attorneys, Jon E. Kingstad, Steve Levine and James S. Thiel, holding that bar expenditures funded by mandatory dues must be germane to the legitimate purposes of the bar.

In doing so, it partially overruled its earlier holding in Thiel v. State Bar of Wisconsin, 94 F.3d 399, 405 (7th Cir. 1996), that non-germane activities may be funded with compelled dues.

But in an opinion by Judge David Hamilton, the court disagreed on the bottom line, and held that the image campaign was “germane” to the purposes of the Bar.

Because the opinion partially overruled Thiel, it was circulated to the entire court; only Judge Diane S. Sykes dissented, concluding that the image campaign was not germane.

The opinion does not necessarily settle the question, however. The Wisconsin Supreme Court currently has before it a petition by the same plaintiffs to amend SCR 10.03(5)(b)1, and limit the use of bar funds. The Supreme Court has placed that petition in abeyance, pending release of the Seventh Circuit’s opinion.

The Public Image Campaign was unveiled in 2002, and consisted of television commercials that highlighted lawyers performing community projects and pro bono work.

In 2007, the bar spent $97,886 of mandatory dues on the campaign — $5.16 per member.

After unsuccessfully challenging that expenditure in arbitration, the objecting attorneys filed suit in state court, and the Bar removed the action to federal court. U.S. Magistrate Judge Stephen L. Crocker affirmed, relying on the holding in Thiel. Kingstad v. State Bar of Wisconsin, 670 F.Supp.2d 922 (W.D.Wis. 2009).

The objectors appealed, but the Seventh Circuit also affirmed.

As noted, the court agreed in part with the objectors — that forced expenditures must be germane to the purposes of the Bar, overruling Thiel in part.

In doing so, the court cited with approval a First Circuit opinion holding that the mandatory bar association in Puerto Rico could not compel its members to buy life insurance from it. Romero v. Colegio de Abagados de Puerto Rico, 204 F.3d 291 (1st Cir. 2000).

However, the court agreed with the Bar that the public image campaign was germane.

The court quoted extensively from a Ninth Circuit opinion, Gardner v. State Bar of Nevada, 284 F.3d 1040 (9th Cir. 200), which upheld a similar campaign by the State Bar of Nevada.

The court iterated, “More’s Utopia has no lawyers, but in our real world, lawyers are not merely a necessity but a blessing. If the public doesn’t understand that — and the State Bar had reason to think many members of the public did not — the justice system itself will wither. The work of the State Bar to foster public understanding of the adversary nature of law is vital to the bar’s function.” Gardner, 284 F.3d at 1043.

Judge Sykes dissented, agreeing that mandatory bar expenditures must be germane to either: (1) regulating the legal profession; or (2) the improvement of the quality of legal services; but disagreeing that the public image campaign was germane to either of those purposes.

Sykes wrote, “After setting the constitutionally required germaneness inquiry on a sound doctrinal foundation, the panel applies the standard in a way that drains it of any real meaning.

“If a public-image campaign designed to benefit lawyers can be considered germane to improving the legal services they provide to their clients, then the germaneness standard in this circuit is not merely generous, it is meaningless,” Sykes argued. “I would hear this case en banc.”

In an interview, Thiel said he and the other objectors would probably seek review in the U.S. Supreme Court, but added, “To some extent, maybe we lost the battle, but won the war, regarding what criteria will be used in the future.”

What the Court Held

Case: Kingstad v. State Bar of Wisconsin, No. 09-4080

Issues: Must expenditures by a mandatory bar association be germane to improving legal services?
Is a public image campaign germane to improving legal services?

Holdings: Yes. Non-germane expenditures violate the rights of members.
Yes. Improving the public’s view of attorneys improves legal services.

Full text available at www.wislawjournal.com

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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