Lucille Taylor

The great 19th century observer of the United States, Alexis de Tocqueville, noted that Americans had a tendency to form voluntary associations to provide social coordination and solve the problems in society. He wrote: “Americans of all ages, all stations in life, and all types of disposition are forever forming associations. There are not only commercial and industrial associations in which all take part, but other of a thousand different types — religious, moral, serious, futile, very general and very limited, immensely large and very minute. … [I]f they want to proclaim a truth or propagate some feeling by the encouragement of a great example, they form an association. In every case, as the head of any new undertaking, where in France you would find the government or in England some territorial magnate, in the United States you are sure to find an association.”

This remains true today of most professionals: They form voluntary associations for their own betterment. One group of professionals, however, has been herded into a mandatory association. Lawyers in Michigan and most other states have been required to join a particular professional association as a condition of practicing. Here, in Michigan, it is the State Bar of Michigan. The bar is, in fact, part of the state government, or in the words of the law, a “public body corporate.” This makes it more akin to what Tocqueville observed in old Europe — a territorial magnate. Lawyers are required to belong and pay fees to a governmental organization which then speaks on their behalf with one voice in public affairs related to the practice of law.

Part of freedom of speech and freedom of association is the right to not be coerced into funding speech or association that you do not agree with. In the past, the United State Supreme Court has limited what sort of compelled speech bar associations can engage in on behalf of their members.

While generally, speech regarding hot-button political issues is not something a bar association can force its members to fund, it can still force them to fund activities that regulate the legal profession. But different lawyers have different opinions on what will improve the legal profession — some of them diametrically opposed to each other. Nevertheless, the state bar association presumes to speak with one voice for all lawyers in the state. It should not be much comfort to lawyers that their rights to free speech and association are protected when it comes to distant or abstract political issues, but yet they lose their rights to free speech and association on the issues that most affect their careers and practice.

The United States Supreme Court recently, in Janus v. AFSCME, curtailed government-compelled speech. The court stated that mandatory union dues or fees paid by public employees, which are similar to the bar dues at issue here, violated employees’ free speech rights. Lucille Taylor, one of the most accomplished lawyers in the state, is, with the help of the Mackinac Center Legal Foundation, seeking to build on Janus and challenge the membership and compulsory fees that are required in Michigan.

It is important to note that what is not being challenged here is the state’s ability to police the legal profession. While most states have a bar association lawyers must support, some of the largest states have no such requirement — including California and New York. So a majority of lawyers in the United States are free from this coercion. Clearly, then, such mandatory membership and payment is not a necessity. Other states manage to regulate the legal profession without infringing on the free speech and association rights in this way.

It’s time to return lawyers’ associations to the voluntary associations that they should be in the American tradition, instead of the mandatory state-controlled monoliths that they have become.