State Bar argues in support of mandatory bar dues

Requiring lawyers to pay bar fees to practice is constitutional and necessary to fund attorney discipline, the State Bar argued in a First Amendment case threatening mandatory bar membership in 37 states.

Because the State Bar allows attorneys to "opt out" of supporting political activities and because its lobbying arm, the California Lawyers Association, split off in January 2018, the bar is not in violation of the First Amendment, according to an amicus brief filed by the State Bar Friday.

The case, Fleck v. Wetch, was remanded by the U.S. Supreme Court in December, and oral argument in the 8th U.S. Circuit Court of Appeals is scheduled for June 13.

The plaintiff, North Dakota attorney Arthur Fleck, claims mandatory bar fees should be ruled unconstitutional as they force lawyers to financially support political or policy positions with which they may not agree.

Under similar reasoning, the U.S. Supreme Court ruled in Janus v. AFSCME that a public employee union violated First Amendment rights in charging nonmembers collective bargaining fees. Janus v. AFSCME, 2018 DJDAR 6308.

The 8th Circuit ruled against Fleck in August 2017, but the U.S. Supreme Court ordered it to reconsider the case in light of Janus.

A previous U.S. Supreme Court case involving the State Bar affirmed the constitutionality of mandatory dues when the funds are in line with the bar's public protection mission.

"Here the compelled association and integrated bar is justified by the State's interest in regulating the legal profession and improving the quality of legal services," according to the opinion. Keller v. State Bar of California, 496 U.S. 1 (1990).

In its amicus brief in Fleck v. WetchKeller shouldn't be overturned.

Unlike in Janus, where the union in question automatically deducted fees without consent, bars offer opt-out options, thus remaining in line with Keller, according to the brief.

Further, the State Bar is a "non-integrated" bar as its political activities are now housed in a separate organization, the California Lawyers Association. Even if the court overturns Keller, non-integrated bars should be exempted, according to the amicus brief. Fleck v. Wetch, 16-1564 (8th Cir., filed Aug. 17, 2017).

"Regulatory agencies like the de-integrated State Bar of California are not implicated by the First Amendment questions raised by appellant about the State Bar Association of North Dakota and other integrated bar associations that have members and dues," the State Bar said in a statement.

Seven integrated state bars have also weighed in on the case in support of mandatory dues.