In June 2018, the Supreme Court of the United States ruled in Janus v. AFSCME that unions could no longer collect mandatory “fair share” fees to cover the costs of collective bargaining, reversing a 40-year precedent.
Several attorneys and organizations took this ruling as a signal that it was a good time to bring new First and/or Fourth Amendment cases against mandatory bars or revive old challenges, in part because of the belief that Janus was relevant to mandatory bars and might overrule the precedent set by the court’s 1990 decision in Keller v. State Bar of California. In short, the Keller decision says that mandatory bars can use dues or membership fees to support political activities with which some members disagree, as long as those activities are “germane” to the bar’s purpose of regulating the profession or improving legal services.
Janet Welch, the recently retired executive director of the State Bar of Michigan and a close observer of challenges to mandatory or integrated bars, says proponents of the mandatory bar model rightfully have taken heart from the U.S. Supreme Court's denial of certiorari in the challenges to post-Janus district and federal court rulings. Those courts have said that only the U.S. Supreme Court can decide whether Janus abrogates Keller.
However, Welch notes, the 9th, 10th, and 5th circuits have “opened the door to an adverse decision to the integrated bar based on a freedom of association rather than freedom of speech claim.” Also, she says, some courts have spoken approvingly of the California model in which the mandatory bar retained only its regulatory functions and a new voluntary bar was formed to carry out all of the others.
"Mandatory bars that do not continue to take seriously the need to focus their activities and statements on regulation of the legal profession and improvements in the quality of legal services risk adverse decisions in the future," Welch adds.
Here is an overview of mandatory bar challenges since Janus, with a few observations from Welch where relevant.
(Note: This article will be updated as new developments occur; new information will appear in italics and parentheses at the end of the relevant section of the article.)