By Joan C.
Dec. 11 --The Nebraska Supreme Court Dec. 6 reaffirmed
mandatory membership in the state bar association as a condition of practicing
law in that state, but limited the expenditure of compulsory bar dues to
specific categories of activities germane to regulation of the legal
profession, and made dues for all other bar activities voluntary (In re Petition for a Rule Change to Create a Voluntary State
Bar of Neb., Neb., No. S-36-120001, 12/6/13).
In a per curiam
opinion, the court turned down a bar member's petition to jettison the
mandatory bar and change it to a voluntary association. It said the
constitutional legitimacy of mandatory bars is beyond question and that the
reasons underlying the court's 1937 decision to integrate the Nebraska bar have
even more force today.
Nevertheless, the court decided that bar members
will be required to pay dues only to fund the bar's regulatory functions:
admissions, membership records, enforcement of ethics rules, continuing legal
education, trust fund records and fighting unauthorized practice. A separate
fee is already assessed for discipline.
mandatory dues to these expenditures will avoid the protracted litigation
experienced in some other states regarding which bar activities lawyers may be
compelled to fund without violating the First Amendment, the court
The court's action comes against the
backdrop of a pending federal court action against the Nebraska State Bar
Association challenging the constitutionality of mandatory dues that bar
members are required to pay.
Scott Lautenbaugh, a Nebraska lawyer and
state senator, filed a civil rights suit against the bar more than a year ago,
alleging that the bar's imposition of mandatory dues to fund activities he does
not support violates his First Amendment right to be free from compelled speech
and association (Lautenbaugh v. Neb. State Bar Ass'n, D. Neb., No.
4:12-cv-03214, filed 10/10/12).
Lautenbaugh is also the petitioner
in the state-court matter. His petition, which he filed before his federal
court lawsuit, asked the state supreme court to disunify the mandatory bar.
The court invited public comment and heard oral argument on the issue. The bar association opposed
the requested shift to a voluntary bar.
In responding to Lautenbaugh's petition, the court
pointed out that the U.S. Supreme Court established more than half a century
ago that a state may constitutionally require a lawyer to be a member of a
mandatory or unified bar to which compulsory dues are paid. Thirty-two states
and the District of Columbia require lawyers to become bar members and pay dues
as a condition of practicing law in that jurisdiction, the court said.
As background for its decision, the court recounted recent efforts some have
mounted in New Hampshire, New Mexico and Wisconsin to abolish the mandatory
state bar. Aside from the temporary suspension of mandatory bar membership in
Wisconsin from 1988 to 1992, no state bar association has converted from
mandatory to voluntary status, it found.
In addition, the court
canvassed constitutional challenges over the years to mandatory bars. The
seminal case is Keller v. State Bar of Cal., 496 U.S. 1 (1990), which
held that use of compulsory bar dues to finance political and ideological
activities with which bar members disagree violates those members' First
Amendment free speech rights, to the extent such expenditures are incurred for
purposes other than regulation of the legal profession or improvement in the
quality of legal services.
Reviewing First Amendment compelled-speech
jurisprudence after Keller, the court found that the legal landscape was
altered by Knox v. Service Employees, 2012 BL 153979, 80 U.S.L.W. 4512
(U.S. 2012), which involved a challenge to certain fees that a public sector
union imposed on employees.
In particular, the court found signals in
Knox supporting the view that the constitutional validity of a bar's use
of compulsory dues for a particular activity turns on whether the activity is
germane to the bar's regulatory purposes, not whether the activity is
ideological or political in nature. Moreover, Knox casts doubt on the
constitutional validity of an “opt-out” system for dealing with members who
object to a bar's expenditures, the court said.
Rather than declaring precisely which activities may be
funded with compulsory bar dues or what mechanism the bar association must put
in place to accommodate objections, the court focused on the administrative
task of how best to structure the Nebraska State Bar Association to meet the
needs of the judicial system, lawyers and citizens.
The court decided
that the mandatory bar should be preserved for the same reasons it was created:
to regulate the profession, ensure that ethics rules are enforced, combat the
unauthorized practice of law and maintain the public's favorable view of the
Nebraska statutes and constitutional provisions
referring to the bar association indicate that the state's citizens have come
to rely on its existence and the court's oversight of the bar, the court
The court concluded, however, that the Nebraska rules relating to
the bar should be modified to limit the use of mandatory dues to the regulation
of the legal profession. Along with discipline, the court said, the regulation
of the profession includes these bar functions:
applicants for bar membership;
the continuing legal education mandate;
records of trust fund requirements; and
those who engage in unauthorized practice.
activities, the court directed, each bar member will pay a mandatory fee--$98
for 2014--to be collected by the bar association and forwarded to the court.
For the bar's other programs and services, it must look to separate sources
such as voluntary dues, grants and gifts, the court said.
This approach, the court explained, preserves
the mandatory bar while avoiding a burdensome item-by-item analysis of each
activity's germaneness to the bar's purposes. The new fee structure draws the
line for use of mandatory bar assessments well within the boundaries of
compelled-speech jurisprudence, the court emphasized.
“By limiting the
use of mandatory assessments to the arena of regulation of the legal
profession, we ensure that the Bar Association remains well within the limits
of the compelled-speech jurisprudence of the U.S. Supreme Court and avoid
embroiling this court and the legal profession in unending quarrels and
litigation over the germaneness of an activity in whole or in part, the
constitutional adequacy of a particular opt-in or opt-out system, or the
appropriateness of a given grievance procedure,” the court stated.
Attached to the court's opinion are extensive rule amendments to implement
its decision. Some of them take effect Jan. 1; the rest become effective April
Scott Lautenbaugh, Omaha, Neb., argued in favor of the
petition. Arguing for the Nebraska State Bar Association were Michael Kinney
and G. Michael Fenner, both of Omaha.
To contact the reporter on this
story: Joan C. Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Kirk Swanson at email@example.com
Full text at http://www.bloomberglaw.com/public/document/PETITION_TO_CREATE_A_VOLUNTARY_STATE_BAR_286_Neb_1018_2013_Court_.
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