Mandatory status up for debate

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Incoming State Bar of Wisconsin President James Boll supports a voluntary bar. James Brennan, who will succeed Boll in a year, supports a mandatory bar.

In the world of Wisconsin law, that makes one of them a Hatfield and the other a McCoy. They do, however, have one thing in common: They believe the Board of Governors needs to ask the Wisconsin Supreme Court for a resolution to the debate.

Both Boll and Brennan support a petition that will be voted on by the Board of Governors at this week’s state bar convention. The petition, pictured in part, asks the Supreme Court to decide whether the bar should remain integrated or be made voluntary, as well as asking the court to perform an audit of the bar’s performance.

“The premise of this is that the Supreme Court is the decision maker on the structure of the state bar,” Brennan said. “One way or the other, the questions that have been concerning members and bar leadership have to be put before the Supreme Court.”

In a statement e-mailed to the Wisconsin Law Journal in response to questions about the petition, Boll concurred.

“Only a decision by the Supreme Court will bring closure to this issue,” Boll said.

The status of Wisconsin’s bar has been at issue since the Supreme Court ruled in 1956 that the bar would be a mandatory organization. In 1988, the mandatory bar was declared unconstitutional by a federal district court. The bar was a voluntary organization from that point until 1992, when, after the federal decision had been overturned, the Wisconsin Supreme Court reinstated the mandatory bar.

Since then, the two sides have repeatedly battled over the status of the bar and how the bar spends the money gathered through mandatory dues. In Kingstad v. State Bar of Wisconsin, No. 09-4080, currently pending in the Seventh Circuit, the bar is being sued over its use of dues money to fund its public image campaign.

Now, the Board of Governors has a chance to ask for a clear resolution on the dispute. According to Boll, that chance can’t be missed.

“If the BOG does not support this proposal that (requests) authority to file a petition with Supreme Court, it will lose the opportunity to highlight the pros and cons of both the voluntary and mandatory structures,” Boll said. “Without BOG leadership, others will fill that void. Such an outcome will lead many of our members to conclude that Bar leadership is out of touch with its members at best and at worst conclude the leadership of the State Bar is obstructing the will of many of its members. An issue as fundamental to an organization as its structure deserves a compromise so members are confident that all views have had an equitable chance of being heard.”

The bar’s status is not a simple question, but at its most basic level, it seems to come down to services vs. freedom of choice.

Brennan, who favors a mandatory bar, said he has “yet to hear the areas in which a voluntary bar could better fulfill the functions for which a bar is organized.”

He’s not alone in that belief. In a report prepared by the Strategic Planning Committee of the State Bar, comments on the voluntary/mandatory question were requested from state bar members. The report listed general themes for the responses. For the mandatory supporters, a common theme was that a mandatory bar can provide better service to its members and the public:

“A mandatory bar can maintain adequate resources and financial stability for services like Continuing Legal Education (CLE), Ethics Hotline, online research and Law Office Management Assistance Program (LOMAP).”

“The stability of a mandatory bar allows the SBW to deliver high quality member services.”

“The Supreme Court needs us — a mandatory bar allows the Court and the association to create a “one stop shop” for key member needs.”

For the pro-voluntary side, the comments focused on freedom of choice:

“Attorneys should have the right to choose whether they want to belong – it’s wrong to force membership in an organization.”

“Mandatory membership raises civil liberties issues because some members are forced to help pay for SBW advocacy of positions they may disagree with.”

“Free enterprise requires a voluntary bar, mandatory state bar membership is like a tax on the practice of law.”

Regardless of how the Supreme Court would act on the petition, the first step is getting it passed. And that’s not a sure thing. The petition would need a 60 percent majority of the board’s 52 members to approve it to pass. Brennan hopes the inclusion of requests for voluntary status, mandatory status and an audit, all in one petition, will help its chances.

“I doubt there would be 60 percent of those present and voting based solely on the question of voluntary,” said Brennan. “And likewise, I doubt there would be a 60 percent majority in favor of the audit.”

But as Milwaukee attorney Nathaniel Cade Jr. put it, the voluntary request could be a tough sell to him and other mandatory supporters.

“No one’s stopping them from filing a petition on their own,” Cade said. “I find it ironic that the people who want to be voluntary, they want the Board of Governors to support it and pay for it.”

Cade also touched on a common theme among mandatory bar supporters, which is that the bar’s status – and the additional revenue from mandatory dues – helps it provide services a voluntary bar couldn’t.

“You can’t tell me having WISLAP is not a good thing,” Cade said. “But if the bar was to turn around and go voluntary, would WISLAP survive? I don’t know.”

Attorney Steven Levine, a well-known advocate for a voluntary bar, said it’s more a matter of lawyers deserving the right to choose.

“I don’t think the state legislature would ever pass a law forcing all doctors, say, to join the state medical society,” Levine said. “But lawyers feel like they have the right to take other lawyers’ rights away.”

Levine said that if the Supreme Court does say the bar should be mandatory, he feels that people will continue to “will either push for voluntary membership or to limit it to the things that a mandatory bar can do,” which has been defined by the U.S. Supreme Court as regulating lawyers and improving the quality of legal services.

Regardless of how it plays out, Brennan, for one, is ready to put the debate to rest. Even if it means taking over as president of a voluntary bar in 2011.

“If the Supreme Court, prior to my taking office or while I’m taking office, makes a decision, I’m really duty-bound to implement that decision in good faith,” Brennan said. “And from my perspective, the Supreme Court’s decision on the status of the bar is final. I’m very, very, very comfortable with the idea that this is the court’s call on this cluster of issues.”

Casey Laughman can be reached at [email protected].