Mandatory vs. Voluntary: Which State Bar Is Better?
By Jill M. Kastner
Jill M. Kastner is an assistant editor of The Affiliate and in private practice in Glendale, Wisconsin.
If you want a lively discussion at your next bar meeting, ask: should attorneys be required to join the state bar association or should it be voluntary? You will get a number of passionate responses.
A Brief History of Mandatory Bars
The debate over mandatory bar membership has raged since the early 1900s, when many states first considered having a mandatory, integrated bar. North Dakota became the first state to mandate bar membership in 1921. Many states soon followed as did the legal challenges.
In 1959, Madison attorney Trayton Lathrop sued the state bar of Wisconsin, claiming that compulsory dues were unconstitutional. Lathrop v. Donohue , 367 U.S. 820 (1961) (Joseph Donohue of Fond du Lac was bar treasurer at the time). The case went all the way to the U.S. Supreme Court, which upheld integration in 1961. The Supreme Court’s decision did not end the debate. In 1986, cases in Wisconsin and California challenged whether a mandatory bar could use mandatory dues for activities beyond maintaining attorney discipline and ethics. Levine v. Supreme Court of Wisconsin , 679 F. Supp. 1478 (W.D. Wis. 1988), and Keller v. State Bar of California , 496 U.S. 1 (1990) . At the time, there were complaints that mandatory dues were being used for ideological and political activities. The Supreme Court in Keller ruled that an integrated bar could use mandatory dues to fund activities that were germane to the goals of regulating the legal profession and providing legal services. Bar dues could not be used for activities of an “ideologic nature which fall outside these areas of activity.”
Mandatory, Integrated Bars Predominate
Today, most states require bar membership to practice law in the state. But the form of mandatory bar varies widely. In states like Wisconsin, membership is mandated by an order of the Wisconsin Supreme Court. In California, it is required under the California Constitution. In states like Oregon, the legislature passed a law creating a new agency to govern attorneys.
Every state that does not have a mandatory bar has a voluntary bar. Many voluntary bars (including the American Bar Association) are thriving.
Although most states mandate bar membership, mandatory bars continue to be challenged in a number of states. Within the last decade, serious challenges have been mounted against mandatory bars in California, Florida, Washington, and Wisconsin—just to name a few. Although many in these states are trying to do away with their mandatory bar dues, other states, such as Hawaii, recently changed from a voluntary to a mandatory bar.
The Pros and Cons of Mandatory and Voluntary Bars
Although advocates and opponents of mandatory bars often cite to the different activities carried out by each, many voluntary bars do much the same work as their mandatory counterparts and vice versa. Some bars, both mandatory and voluntary, perform a wide range of pro bono and/or public service works, while others focus almost solely on attorney discipline and standards of practice. Each bar’s focus is more a function of the will of its membership than whether it is mandatory or voluntary. So, what is the difference?
For many, it comes down to the almighty dollar. When California State Senator Quentin Kopp introduced a bill to abolish the mandatory bar, he argued that mandatory dues were just another tax on attorneys. He claimed that bar dues was yet another tax wasted on the bureaucracy of the bar and its spendthrift programs. Many who oppose mandatory bars equate membership dues with taxes.
This is not to say that proponents of voluntary bars do not want to pay bar fees. Instead, they argue, voluntary bars are more careful about how those voluntary dues are spent because if members do not approve, they can withdraw their membership and corresponding dues. Proponents also argue that voluntary bars are more efficient and accountable to their memberships than mandatory bars.
Advocates of mandatory bar membership point to the positive benefits of bar membership for members, the profession, and the public. With a larger and more stable base of revenues than their voluntary counterparts, a mandatory bar can commit to more long-term programs and projects. Although a bar’s programs and focus change with its leadership, the stability afforded by mandatory membership and fees can be used to effectuate stronger pro bono and public interest programs that serve community needs more than the immediate needs of the bar’s attorney members.