Scales of justice
Patrick Ishmael

To practice law, prospective attorneys typically have to pass a Bar exam and, after passage, maintain a membership in what's often called a statewide mandatory bar. Local Bar organizations are also common, but membership in say a St. Louis bar association is not required to practice law in St. Louis. Membership in the Missouri Bar, on the other hand, almost always is required to practice law in Missouri. If this kind of sounds like forced unionization, you wouldn't be completely off base; after all, while the Missouri Bar doesn't negotiate salaries and benefits for each of its members, it certainly isn't averse to political interventions that put its institutional interests above the sensibilities of individual members.

But that could change if a lawsuit challenging the North Dakota mandatory bar and filed in the Eighth Circuit -- of which Missouri is a part -- is successful.

A lawsuit filed by a Bismarck attorney will appear before the 8th Circuit Court of Appeals in St. Louis on Tuesday, April 4, claiming the North Dakota State Bar Association spent his dues to oppose a ballot measure he supported.

Arnold Fleck, 59, a self-employed attorney and member of the association, is being represented by the Goldwater Institute, an Arizona-based public policy think tank, in his lawsuit that argues the association contributed nearly $50,000 to a PAC opposing a shared parenting time and responsibility bill in 2014. An amended version of that bill — though shot down by voters twice in the past decade — just passed the Senate last week and before the state bar opposed the legislation, it took a neutral stance on the measure....

 

The case is addressing two additional issues: requiring the bar to adopt an "opt-in" for political spending, rather than an opt-out, and challenging mandatory bar membership as a violation of the First Amendment.

 

We have long talked about the Constitutional attractiveness of opt-in arrangements especially when political speech is involved, but the ability of mandatory bars to command dues payments creates substantive fungibility problems if only an "opt-in" reform is adopted. If the Show-Me Institute could force every educator in the state to pay us for the right to educate, that would be an enormous benefit to our day-to-day operations that would help make fundraising for other Show-Me projects much easier. In reality, SMI has no such power, and the supporters we have are supporters of their own accord rather than through compulsion. We wouldn't have it any other way.

But that freedom to associate and support an organization, or not, should apply as much to Bar membership as it does to other policy spaces. I don't have a problem with the idea of a Bar exam to ensure prospective lawyers are versed in local law and jurisprudence, but once that hurdle's been cleared, further interaction with a state Bar should be optional. In states where the statewide bar isn't mandatory, the state still polices the legal profession effectively; there's no reason to believe North Dakota, Missouri and other mandatory bar states wouldn't be able to, as well. 

Plenty of local bars continue to exist not because lawyers have to be members, but because they want to be members. The state Bar should adopt the same model.

About the Author

Patrick Ishmael

Patrick Ishmael is the director of government accountability at the Show-Me Institute.