Wisconsin Lawyer
Vol. 79, No. 10, October 2006

Why a Voluntary Bar

by Steve Levine

When I ran for State Bar president-elect last year, the main issue I raised was whether State Bar membership should be voluntary or mandatory. I wanted to give Bar members a chance to express themselves on this issue, and the only way I could figure out how to do it was to run for president-elect and let the voters decide. From the very beginning of compulsory bar membership in Wisconsin, the issue has been one on which there have been strong feelings. My own belief that mandatory bar membership is wrong is based on the principle that every lawyer - no, every person - should have the freedom to decide which organizations he or she wants to belong to and support. There's just something un-American about forcing people to join and financially support a group with which they may disagree, for whatever reasons. Here's why I believe that every Wisconsin lawyer should be entitled to decide for himself or herself whether to join and pay dues to the State Bar of Wisconsin.

1) Wisconsin lawyers want a voluntary bar. When State Bar membership was made mandatory some 50 years ago, no vote was held. Wisconsin lawyers were never given the opportunity to decide for themselves or to vote on the question of whether State Bar membership should be made mandatory. When a referendum was taken on the issue some 27 years later (in 1979), 60 percent of Bar members who cast a ballot voted for a voluntary bar. While there has been some effort to portray voluntary bar proponents as a minority or fringe element, the 1979 referendum showed that the majority of Wisconsin Bar members - including those who themselves would join a voluntary bar - respect the right of all lawyers to decide that question for ourselves. The majority of Wisconsin lawyers agree that no one should be forced to join an organization with which he or she may disagree. It's time for our Wisconsin Supreme Court to seriously consider the majority's respect for the First Amendment rights of all Wisconsin lawyers and to make State Bar membership voluntary.

2) The State Bar of Wisconsin doesn't meet the requirements for a mandatory bar. When the State Bar and Wisconsin Supreme Court defended the constitutionality of mandatory bar membership before the U.S. Supreme Court in 1961, they presented the mandatory bar as merely another way of regulating lawyers. But any justification based on the mandatory bar being a regulatory agency lost validity in 1978, when the Wisconsin Supreme Court removed all regulatory functions from the Bar and set up two agencies under its own control. Those agencies now are called the Board of Bar Examiners and the Office of Lawyer Regulation. The result is that the Bar no longer performs those regulatory functions that were used to justify its existence in the first place.

So, State Bar membership should be made voluntary, because the Bar doesn't use its revenues from mandatory dues to pay for those activities that have been held to justify mandatory membership. In Keller v. State Bar of California, 496 U.S. 1, 13-14 (1990), the U.S. Supreme Court specified two activities that justify mandatory bar membership and dues _ regulating the legal profession and improving the quality of legal services offered by State Bar members. But regulating the legal profession is now the province of the Office of Lawyer Regulation, and CLE and bar admission requirements are now enforced by the Board of Bar Examiners. Both are supported by assessments that we pay that are separate from State Bar dues. No State Bar dues money is spent for the specific activities identified by the U.S. Supreme Court as justifying a mandatory bar membership requirement. There simply is no justification for mandatory membership in the State Bar of Wisconsin.

3) A voluntary bar will be a stronger, more independent bar. A voluntary bar would be a freer, more independent bar. In her 1992 opinion dissenting from the Wisconsin Supreme Court's reinstatement of the mandatory bar membership requirement, Chief Justice Shirley Abrahamson wrote:

"Our legal system and our fundamental liberties rest to a large extent on an independent bar and an independent judiciary. The bench and bar should, I believe, strive for amicable relations, but the public interest requires that each be independent of the other. It is important for bar organizations to be free to take positions not favored by the bench, and for the bench to regulate the practice of law in the public interest (which may not necessarily be in the interest of individual lawyers or a bar organization). The unified State Bar of Wisconsin, controlled as it is by this court, cannot be independent, as many lawyers have openly acknowledged. That's not good.

"A unified bar is handicapped in speaking out about legislative and public policy issues because of the limitations placed on it by the constitution and the Keller decision."¹

Chief Justice Abrahamson's conclusion is consistent with my own experience as a member of the State Bar Board of Governors, where a question sometimes asked before Board action is, "If we pass this proposal, how will the supreme court react?" A voluntary bar would be a strong, independent bar, free to act in its own best judgment while at the same time respecting the First Amendment freedoms of all Wisconsin lawyers.

4) What's the next step? Although making Bar membership voluntary was the main issue that I ran for election on, it wasn't the only issue. So, in order to get a "pure" indication of how State Bar members feel on the issue, I'd like the Bar to hold a referendum on this question: "Should the Board of Governors petition the Wisconsin Supreme Court to make State Bar membership voluntary for a 10-year trial period to see if a voluntary bar is feasible?" Before proposing the referendum to the Board, I'll be appointing a committee to study what the impacts of a voluntary bar might be and how the transition might be made, so you'll have all the facts before you if the Board of Governors agrees to let you have a say. (If you're interested in serving on the committee, please email me.)

But what if the Board doesn't want you to express your views on this issue?

There is an alternative method - petition by the membership - to place a referendum on the ballot. It's not as easy as if the Board of Governors would vote to hold the referendum, but it's doable. The choice is either a referendum by vote of the Board, a referendum by petition of the membership, or ... maybe I'll have to run for president-elect again. Stay tuned.

Please feel free to comment directly to me at steven.levine@charter.net.

¹In the Matter of State Bar of Wisconsin, 169 Wis. 2d 21, 40-41, 485 N.W.2d 225 (1992) (Abrahamson, J., dissenting).

Wisconsin Lawyer