Say there was a panel discussion at the Annual Meeting of the National Conference of Bar Presidents in Boston. The subject: whether bar associations should speak out on controversial topics, including social issues such as same-sex marriage.
One panelist argued that bar associations have a duty to speak out and that his bar doesn’t hesitate to do so, and another said with equal certainty that bar associations should tread carefully and that his bar has a very strict policy that limits the issues on which the bar takes a position.
Can you guess which panelist is a past president of a mandatory state bar—bound by the Keller decision—and which one is from a voluntary metro bar, and under no such restriction?
Actually, it was Sal Mungia, past president of the Washington State Bar Association, advancing the idea that bar associations are compelled to speak out, and that “there is no line between social issues and legal issues.” At the other end of the spectrum was W. Perry Brandt, current president of the Kansas City (Mo.) Metropolitan Bar Association, who cautioned against the “slippery slope” of speaking out on social issues and perhaps losing members as a result.
Joining Brandt and Mungia in this lively discussion—and falling somewhere between those two viewpoints—were Alice F. Paylor, immediate past president of the South Carolina Bar, Cindy Wyrick, immediate past president of the Tennessee Bar Association, and moderator Scott Chinn, past president of the Indianapolis Bar Association.
Why should a bar association speak up—even if it’s bound by Keller rules?
“We have failed in protecting the rule of law, historically,” Mungia believes, and bar associations have the expertise, knowledge, and obligation to speak up for the rule of law—and to speak out if certain laws or practices are infringing on civil rights and liberties.
Where were the bar associations during World War II, when Japanese-Americans were sent to internment camps?, Mungia asked, noting that he is half Japanese. He cited other examples, such as the Jim Crow and McCarthy eras, when “We’ve been silent.”
But what about the rules governing mandatory bar associations and advocacy? “I think a lot of people misunderstand Keller,” Mungia said. First, he argued, the provision in Keller that allows mandatory bars to use dues to advocate on matters that improve access to justice can be interpreted much more broadly than many people think it can; the types of social issues that Mungia mentioned could fall under such a definition, he believes.
And even under a more strict interpretation, he said, Keller doesn’t mean you can’t use dues toward advocacy; it just means that you must be clear about how much of members’ dues are used for this purpose and offer a way for them to opt out of that portion if they object to this use.
Regardless of mandatory or voluntary status, Mungia believes many bars are too cautious when it comes to seeking member consensus before taking a position. “No other association acts like that,” he said, noting that he belongs to the American Civil Liberties Union. He doesn’t always agree with the ACLU’s decisions, he said, but this doesn’t mean he cancels his membership—he knows he can express his opinion in how he votes for the organization’s leadership.
The question of whether a bar’s stance on a controversial issue will harm its standing in other important ways—or even threaten its unified status—is “not a hypothetical,” Mungia conceded. In fact, a legislator in the eastern part of his state filed a bill to deunify the bar in response to its position on same-sex marriage.
Still, when it comes to big issues that involve constitutional rights (and Mungia considers same-sex marriage to be one of them), he believes that speaking out is worth even this risk. “I won’t be held hostage” by legislators, he said.
Why shouldn’t a bar association take a position—even if Keller doesn’t apply?
One reason Brandt prefers his bar’s much more strict definition regarding when and what kind of position the bar can support is that he disagrees with Mungia’s idea that the bar association is necessarily the best or most appropriate organization to take up social issues.
For one thing, every bar association has limited capabilities in terms of what it can effectively focus on, and must ask itself, “What are we good at?” For the KCMBA, the answer was that the bar was good at fosterting the best interests of lawyers and judges—and that other organizations were better suited to address matters such as whether LGBT should be added to the categories covered under anti-discrimination laws.
When that particular issue arose, in light of a policy that had been implemented a few years prior as part of its strategic plan, the bar decided not to take a position even though every individual board member was in favor of the state amendment in question. Instead, the bar told members that if they, too, supported the amendment, they should do what they could to advocate for it as individuals or through their law firms.
One concern, Brandt said, was that taking a position on this issue would “set a precedent.” If the bar takes such a position once, he explained, it might then be called upon to take up similar issues in the future. Where to draw the line would then become a question, he said, and the bar’s much-needed focus might be diminished.
Another very real concern for voluntary bars, Brandt noted, is the potential loss in membership. Losing a few disgruntled members here and there might not seem like a big concern—unless you’re a voluntary bar that puts considerable effort into attracting and retaining members, and needs every one that it is has.
If you take on positions without significant member buy-in and this results in losing a few members, it might build to such a point where you’re losing 10 percent of members here and there—and “Pretty soon, you look in the mirror and that’s all you have left,” Brandt said.
Choosing when to respond
Mungia was clear that the WSBA doesn’t respond to every issue that comes up. But for those who are a bit more cautious than Mungia yet don’t want to steer as clear as Brandt, how can a bar association decide which issues to act on?
During the question-and-answer period, George Brown, executive director of the unified State Bar of Wisconsin and 2014-'15 president of the National Association of Bar Executives, noted that a bar association can help advance certain issues without taking the lead. For example, in 2006, when there was a referendum in Wisconsin that advised re-establishing the death penalty, the bar successfully worked behind the scenes with the coalitions that were opposed to this idea. "Sometimes, it's better not to be out in front," Brown said.
Wyrick called the ability to consider weighing in on issues to be both a “luxury and a burden” of being a voluntary bar. Important in this type of decision, she said, are member surveys or other means of assessing what members think. Then, she said, bar leaders must step back, look at the big picture, and consider, “What kind of doors does this open?”
For the Tennessee Bar Association, the big picture dictated not speaking on an issue for which there was significant member support. Recently, three appellate court justices were up for retention, and the lieutenant governor, who is also the honorary speaker of the state senate, intended to speak out against their retention.
The bar needed to decide whether to issue any type of statement in support of the judges, which would mean changing its long-standing policy of not getting involved in matters like judicial selection or election. Ultimately, the bar decided not to take a position because this would “undercut our neutral voice,” Wyrick said.
But the bar did poll its members and found that nine out of 10 of them supported the judges’ retention. The bar reported this fact—that members supported retention, not that the bar was taking a position. The election was the day before she spoke at Annual; all three judges were retained, and Wyrick believes it may in part have been because of this very carefully framed message of support.
As a mandatory bar, Paylor said, the South Carolina Bar takes very seriously its role as “the only way, really, that all the lawyers [in the state] come together.” This means it’s very selective about the issues it responds to; these tend to be cases where the integrity of the profession or of the judicial branch is called into question.
One example of when the bar did respond was the recent attack ads by the Republican Governors Association. Another example, Paylor said, was when a judge experienced a “huge outcry” and personal attacks when he reduced a previously heavy sentence for a young man in a drunk driving case. “We spoke for [the judge],” Paylor said, “because he couldn’t.”