The Limits of Compulsory Professionalism: Does a Unified Bar Make Sense for Michigan?

³State Bar Rule 15.2.

⁴State Bar Rule 17.

⁵State Bar Rule 4(b).

⁶As of October 1, 1993, by virtue of Administrative Order 1993-5, 443 Mich xv, the State Bar is now precluded from lobbying generally, but retains authorization to lobby on what for present purposes might be described, by supporters of such activity, as "core" issues for a statutorily universal, all-encompassing bar organization.

⁷Pursuant to Michigan Const 1963, Art 6 §5, the Supreme Court of Michigan has the sole power to establish rules of practice and procedure for the state's "one court of justice," Mich. Const. 1963, Art 6 §1. The court has broadly interpreted this power as insulating itself from all manner of laws of general application. For example, the State's Open Meetings Act when it acts legislatively to promulgate rules, In re "Sunshine Law," 1976 PA 267, 440 Mich 660; 255 NW2d 635 (1977); the Public Employment Relations Act, which authorizes public em-ployees generally to organize for collective bargaining purposes, but not to strike, In the Matter of the Petition for a Representation Election among Supreme Court Staff Employees, 406 Mich 647; 281 NW2d 299 (1979), modified on rehearsing 406 Mich 690, despite holding that the act applies to lower courts, which ought to be part of the "one court of justice." Teamsters Union Local 214 v 60th District Court, 417 Mich 291; 335 NW2d 470 (1983); and the general election law, including campaign finance reform provisions therein, 1976 PA 388, MCL 168.1 et seq., MSA 6.1001 et seq., In the Matter of Lawrence, 417 Mich 248, 264-265; 335 NW2d 456 (1983). On the other side of the coin, the Court frequently promulgates rules which in no way appear to deal with court practice or procedure, but function as substantive legislation, such as creating the lawyer disciplinary bodies.

⁸State Bar Rule 5.

⁹State Bar Rule 9.

¹⁰State Bar Rule 6.

¹¹Amendment to the Rules Concerning the State Bar of Michigan, 388 Mich cxlvii (1972).

¹²Advertising, Certification & Specialization; Annual Meeting Coordinating; Appellate Court Administration, Arbitration of Disputes Among Attorneys; Assigned Counsel Standards; Awards; Character & Fitness; Civil Liberties; Civil Procedure; Client Protection Fund; Communications; Constitutional Law; Consumer Law; Continuing Legal Education; Court Administration; Criminal Jurisprudence; Defender Systems & Services; Ethics; Profes-sional & Judicial; Fiscal; Grievance; Health Care; Insurance Law; Judicial Qualifications; Jury Instructions, Standard Criminal; Law-Related Education; Lawyers and Judges Assis-tance; Lawyers' Professional Liability Insurance; Legal Aid; Legal Education; Delivery of Legal Services; Legislation; Libraries, Legal Research & Publications; Local Bar Liaison; Medicolegal Problems; Membership Services; Mentally Disabled; Military Law; Oil & Gas Law; Prisons & Corrections; Pro Bono Involvement; Professionalism; Scope & Correlation; Senior Justice; State Trial Courts Administration; Unauthorized Practice of Law; United States Courts; Upper Michigan Lawyers. Only the Character & Fitness Committee performs any "official" function, passing on the fitness of applicants for admission to the bar exami-nation.

¹³Client-Protection Fund—Claims Review; Health Insurance; House; Judiciary; Local Bar Association Review; Nominating; Personnel.

¹⁴Criminal Code Revision; Law and the Media; Law Day; Plain English; Tort Law Review; Expansion of Under-Represented Groups in the Law; Victims of Crimes.

Introduction

A. The Peculiar Institution

The unified bar—wherein lawyers are required to join the state bar association as a precondition to obtaining and maintaining a license to practice law—is a system of organ-ization unique to lawyers. No other profession, in Michigan or any other state, is organized or has ever seriously considered organizing itself along similar lines.

Though states routinely license a wide variety of occupations and professions, and often require the payment of an annual licensing fee by those practicing within the profession, forced membership in an association is unknown outside the bar. Doctors are not required to join the medical society, nor dentists the dental association. CPAs, veterinarians, and architects are free to join, or not to join, their respective professional organizations. The same is true with other licensed professions and occupations.

Indeed, the very term "unified bar" is misleading. A better term is "compulsory bar," as indicated by the fact that the alternative to the unified bar is not referred to as the "divided bar," but as the "voluntary bar." There is nothing to suggest that lawyers in compulsory bar states are any more "unified" than their counterparts in voluntary bar states, whether one speaks in terms of practice, reputation, beliefs, goals, needs, or abilities. Indeed, one can muster considerable support for the proposition that, in compulsory bar states, forced membership in the "unified" bar is itself the single most divisive issue in the profession.¹⁵

This report will use the terms "compulsory bar" and "unified bar" interchangeably. The reader should keep in mind that the incantation of the term "unified" brings no magical unity of interests or beliefs to the profession. The fundamental question is not whether the bar should be "unified," but whether membership in the bar should be voluntary or coerced.

B. Three Visions of the Bar

The confusion over labels is not insignificant, as it both symbolizes and confuses a long-running debate over the legal status of the unified bar. In fact, much of the debate over the merits, morality, and constitutionality of the unified bar stems from three distinct, and often conflicting, visions of the bar: the bar as private association, the bar as a state agency, and the bar as a professional union.¹⁶

The common historical vision of the unified bar is that of a private association, operating no differently from the voluntary bar associations that existed in most states prior to unification, and which continue to exist in the 19 states that have not adopted a unified bar. During the period from 1920 through 1950, when most state bars were unified, it seems to have been the unquestioned assumption of leaders of the unification movement that the bar would continue to function as a private association, despite invoking the coercive power of the state to force membership and extract dues from reluctant colleagues.¹⁷

Bar leaders in unified states have generally operated their associations in the same manner as voluntary bars, offering member benefit programs such as insurance and car rental discounts, a member's magazine, and an active lobbying effort aimed at legislation affecting the association's members. Compulsory bars have jealously guarded their independence by resisting legislative or judicial encroachments into the bar's internal and external operations.

At the same time, leaders of the unified bar have often been quick to invoke a second model of the unified bar—that of a public agency—when convenient. In this vision, the unified bar is a state agency, essentially no different from the State Board of Education or any other agency, except that its officers are elected by a singular class—lawyers—who also pay a special tax to support the agency's operations. The ostensible purpose of the agency is to regulate the legal profession and serve the legislature as a resource for information and advice on legal issues. This model is quite different from that of a private, voluntary organization, for it implies significant oversight of bar operations and budgets by the legislature and governor, with managerial accountability to the public at large.

In accordance with the public agency model, unified state bars have in recent years been under pressure to add lay persons to their governing boards. Such moves, when successful, may hinder the unified bar's ability to look after its members' direct interests.¹⁸ Even when states have not required the presence of "public" representatives on the unified bar's governing body, the trend has been for increased interference in state bar affairs by state supreme courts and legislatures.¹⁹

In Michigan, for example, the State Bar has found its role in the management and budgeting of the Attorney Grievance Commission and Attorney Discipline Board cut back substantially by the Michigan Supreme Court.²⁰

Such increased oversight has not generally been welcomed by compulsory bars, which correctly view closer legislative and judicial oversight as limiting their autonomy.

To members of the bar seeking to preserve their institutional independence, the ultimate danger of the public agency model is the creation of a compulsory bar not controlled by lawyers, such as existed in Louisiana under Governor Huey Long in the 1930s. There, lawyers were forced to join a unified bar with a governing board elected by the public and not explicitly limited to lawyers.²¹

Therefore, although unified bar leaders have frequently invoked the state agency model to advance the bar's immediate interests or to quash threats to the bar's mandatory status-usually a dissident lawyer who challenges the state's right to force membership in the association as a pre-condition of practice—once the immediate need or threat has passed, the unified bar reverts to the vision of itself as a private organization.²²

Between these two visions of a unified bar lies yet a third view, which sees the unified bar as analogous to a public employees' labor union. In this view, the state bar exists to serve its members, who prefer self-regulation to state regulation. Membership is mandated in order to prevent the "free rider" problem, in which some lawyers benefit from the services of the bar, yet avoid paying for those services. However, because membership is coerced, the state must periodically intervene to protect the rights of dissenting bar members from abuse by the majority of the organization. This conception of the unified bar creates different public policy ramifications than either the private association or state agency conceptions, ramifications which are explored more fully in the sections that follow.

These conflicting visions of the unified bar—private association, state agency, and union-have created a great deal of confusion over the rights of states to force membership, the authority of unified bars to engage in various activities, especially political activities, and the rights of dissenting lawyers to withhold dues from the bar. Perhaps inexorably, or possibly because the primary players are lawyers, these issues have regularly ended up in court.

In court, the confusion over the proper vision of the unified bar has hindered efforts to answer these questions. The doctrine which has only recently emerged from the courts—that the unified bar should be treated in a manner analogous to a labor union—both exposes and exacerbates the inconsistent goals and images of the unified bar. Under this doctrine, if the unified bar ever had any advantage over a voluntary association—either to lawyers or to the public—it no longer does.

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¹⁵For a sampling of the disunity within the Michigan State Bar, see e.g. Robert Epstein, Opt-out of State Bar Lobbying Effort is this Attorney's Choice, Mich. L. W., March 4, 1991 (letter to the editor) ("What makes [State Bar leaders] think that the legislative activities of the State Bar . . . are representative of the feelings of the bar?"); Michael Franck, Lawyers Better-Served When State Bar Active in Legislature, Mich. L. W. March 11, 1991 ("I think it hardly likely that anyone believes that positions advocated by the State Bar of Michigan ... are universally shared by every one of its members ... ); Marcia McBrien, Debate Continues: Mandatory or Voluntary Bar for Michigan, Mich. L. W., April 5, 1993; Marcia McBrien, Poll Respondents Express Dissatisfaction With Bar, Mich. L. W., April 19, 1993. See also Falk v. State Bar of Mich., 411 Mich 63, 305 NW2d 201 (1981)(Falk 1); Falk v. State Bar of Mich., 418 Mich 270, 342 NW2d 504 (1983)(Falk 11). For a more general account, see Theodore J. Schneyer, The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case, 1983 Am B Found Res J 1, 1-4 (1983).

¹⁶It is beyond the scope of this study to provide more than the briefest description of these competing views. For readers interested in an excellent, detailed discussion of the three models, and the policy implications which flow from each, see Schneyer, supra n. 1, at 47-49. The brief description which follows draws substantially from Professor Schneyer's account.

¹⁷Schneyer, supra n. 1 at 46.

¹⁸Schneyer, supra n. 1 at 68-72

¹⁹Id. at 72-75.

²⁰Michael Franck, Crisis and Opportunity Confront the State Bar, 72 Mich B J at 272 (March 1993).

²¹A more conventional unified bar was established after Long's death. Schneyer, supra n. 1 at 44.

²²Compare the position of the Michigan State Bar in Falk 1, 305 NW2d at 214 ("The State Bar responds that ... [it] is rather a `public body corporate' that operates as a public or state agency"), with quite literally, any issue of the Michigan Bar Journal and most pronouncements of Michigan State Bar leaders, which routinely refer to the bar as an "organization" rather than an "agency," lawyers as "members," and the membership fee as "dues" rather than a tax or licensing fee. The Michigan State Bar maintains a "Membership Services Department," and provides such "services" to members as a regular journal and member benefit programs such as insurance and discounts. As one commentator has noted, these are "the stock in trade of private association." Schneyer, supra n. 1 at 75. Meetings of the State Bar's Representative Assembly are riddled with references to "protecting the profession" and "speaking for the membership" in the legislature. See e.g. Marcia McBrien, Representative Assembly Approves Dues Bifurcation, Establishes 1994 Bar Dues, Mich. L. W., May 3, 1993.

The Unified Bar in the Courts

A. Lathrop: the unified bar upheld.

In the 1956 case of Railway Employees' v. Hanson, the Supreme Court, asked to rule on the constitutionality of a union shop provision, stated casually, "On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated [unified] bar."²³ Apparently, the constitutionality of the compulsory bar was so obvious to the justices as to be beyond question.

However, far from precluding challenges to the compulsory bar, the Court's casual pronouncement on the constitutionality of the compulsory bar—a question which was not before it, and which had not been briefed—marked the beginning of more than 30 years of legal wrangling over the constitutionality of the compulsory bar.²⁴ Only recently has a clear body of doctrine begun to emerge.

The Supreme Court first had to face the fact that the issue was not so simple just five years after Hanson. In Lathrop v. Donohue, Trayton L. Lathrop, a Wisconsin attorney, argued that his compelled membership and financial support of the State Bar of Wisconsin, which engaged in various political and legislative activities with which Lathrop disagreed, violated his rights under the First Amendment.²⁵ The Court quickly realized that its cavalier pronouncement in Hanson on the legitimacy of a compulsory bar was problematic.

The case split the Court into no fewer than five camps. Writing for a four justice plurality, Justice Brennan found that mandatory membership in a unified bar was constitutional, but that certain political and legislative expenses of such an organization might violate First Amendment rights of free speech.²⁶ However, as the record did not reveal any particular political or legislative activities that Lathrop alleged violated his rights, the plurality reserved decision on the question.

Justice Harlan, joined by Justice Frankfurter, concurred in the judgment, but would have found that the State Bar of Wisconsin's use of compulsory bar dues to promote legislative goals, regardless of the views taken, was not prohibited by the First Amendment. Justice Whittaker concurred only in the result, being of the opinion that, whatever its activities, a mandatory bar did not even raise First Amendment issues.

In dissent, Justice Black wrote that the State Bar of Wisconsin's use of compulsory dues for political purposes violated Lathrop's First Amendment rights of free speech. Also dissenting was Justice Douglas, who went Black one better by arguing that even compulsory membership in a state bar association violated the First Amendment right of free association.

Despite the fractured nature of the Lathrop opinions, eight of the court's members—all save Douglas—agreed that compulsory membership was constitutional: The other question posed by Lathrop—what limits, if any, does the First Amendment place on the expenditure of compulsory dues income—was left for another day. It would be over 30 years before that day arrived in the Supreme Court. Meanwhile, the issue continued to percolate in lower courts as other Trayton Lathrops pressed their cases in states around the country, including Michigan.

B. The Falk Decisions

On November 30, 1977, Allan Falk, a lawyer employed by the state, filed an original action against the State Bar of Michigan in the Michigan Supreme Court. In his "Petition for Special Relief," Falk did not attack the validity of the compulsory bar per se, but claimed that the use of mandatory dues to fund certain activities of the State Bar violated his First Amendment rights of speech, assembly, and religion.²⁷

Falk's argument hung primarily on a post-Lathrop labor law decision of the United States Supreme Court, Abood v. Detroit Board of Education.²⁸ In Abood, the Detroit Board of Education had reached a collective bargaining agreement with the local teachers' union which implemented an "agency shop" arrangement. Under this agreement, teachers who chose not to join the union nevertheless had to pay to the union a "service fee" as a condition of employment with the school system. The plaintiffs, Detroit public school teachers, objected that their compelled dues were used to fund ideological and political lobbying for causes unrelated to collective bargaining and repugnant to their beliefs. The Supreme Court held in Abood that the Board of Education, as an arm of the state, could not compel individual teachers to pay dues to support ideological activities unrelated to collective bargaining, and that the plaintiffs were entitled to a pro rata refund of dues spent on such activities.²⁹

Falk's case was eventually argued to the Michigan Supreme Court on June 5, 1979, but the Court did not issue an opinion for nearly two more years, until April 29, 1981.³⁰ When it finally did issue an opinion, the Michigan court found itself as sharply divided as the United States Supreme Court had been over Lathrop 20 years before.

Three members of the Court—Justices Ryan, Moody, and Fitzgerald—found largely in favor of Falk and would have drastically restricted the Bar's legislative and commercial activities. Ryan, writing for this plurality, would have held the state's actions to an exacting standard of "strict scrutiny." Under this standard, in order to avoid running afoul of the First Amendment, the State Bar would have to show that forced membership in the bar, and expenditures of dues for legislative activity, were of "paramount" interest to the state. Additionally, forced membership and dues could only be imposed if this were the least drastic means available to satisfy the identified government interest. The plurality would have limited the use of mandatory dues to disciplinary and licensing matters, legal education for lawyers and the public, maintenance of a lawyer referral service, and publication of the Michigan Bar Journal. All other compulsory dues would have to be refunded to dissenting bar members.³¹

However, two members of the Court—Justice Williams and Chief Justice Coleman—would have found all the State Bar's activities to be acceptable save the commercial sale of the Bar's membership roster. These justices read Abood to require only that the use of mandatory dues be "germane" to the purpose of the bar and that the state have "an important interest" in maintaining a compulsory bar. These justices then argued that the opinion of the State Bar was always an important interest of the state. Indeed, Williams wrote, "Authorizing the State Bar to aid the state . . . is essential to the state's continued existence," a rather stunning claim for any organization.³²

Finally, Justices Levin and Kavanagh urged that a ruling be delayed to allow for additional evidentiary hearings, and, as no majority could be found to do anything else, this was done.³³

Nearly two years later, the case found its way back before the Michigan Supreme Court. By this time, Justices Moody, Fitzgerald, and Coleman had left the court, to be replaced by Justices Kavanagh, Brickley, and Boyle.

However, the result was the same. Justice Ryan, joined this time by Justices Cavanaugh and Brickley, again argued that the Bar's use of compulsory dues should be drastically curtailed. Justice Boyle, taking the view of the departed Coleman, joined Williams in support of the constitutionality of the full range of unified bar activities. Wrote Boyle, "[T]heir [the Bar's] input is of broader interest to the Legislature" than the input of other citizens or groups. Justices Kavanagh and Levin continued to argue that more empirical study was required for a decision.³⁴ Falk failed to carry the day; the case was dismissed.

Thus, in two attempts over four years, the Michigan Supreme Court was unable to reach any decision on the merits of Falk's claims. Eight of the ten justices who heard the case agreed that the issue should be decided on its merits. Five of the eight essentially would have held for Falk, three for the State Bar. Justices Levin and Kavanagh, by sticking to their position that the issue was not ripe, kept the court from issuing any meaningful decision.

C. Keller v. State Bar of California—The Supreme Court Sets a Standard.

In Keller v. State Bar of California,³⁵ the Supreme Court finally returned to issues left unresolved since the Lathrop decision more than 25 years previous.

In Keller, members of the compulsory State Bar of California, echoing the Falk cases, argued that use of their mandatory membership dues to finance ideological and political activities to which they were opposed violated their First Amendment rights. Among the activities challenged by the plaintiffs were lobbying for or against legislation on such issues as changing the gift tax to exclude gifts made to pay for education tuition or medical care, creating criminal sanctions for violation of laws pertaining to the display for sale of drug paraphernalia, and requesting Congress to refrain from enacting a guest worker program for alien labor; filing amicus curiae briefs in cases involving the constitutionality of a victim's "bill of rights," disqualification of a law firm from a case, and the power of a workers' compensation board to discipline attorneys; and adopting resolutions on issues such as gun control, a nuclear weapons freeze, and federal court jurisdiction over abortion, public school prayer, and court ordered busing to achieve school desegregation.³⁶ The California Supreme Court, ruling that the State Bar Association was a state agency, had upheld the use of mandatory dues for all such activities.³⁷ The United States Supreme Court unanimously reversed.

The Court began with a perfunctory statement, "lawyers admitted to practice in the State may be required to join and pay dues to the State Bar . . ." However, the Court went on to hold that a unified bar could not use mandatory dues to engage in the full range of activities that might be open to a state agency.

The Court found, "The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as `governmental agencies."' It noted that the bar's revenues came not from legislative appropriations, but from dues income; that only lawyers were members; and that the State Bar did not ultimately have the power to admit anyone to the practice of law, nor to disbar or suspend an attorney, nor to establish codes of conduct. It was not created, the Court noted, to participate in the general govern-ment of the State, and its members and officers were not selected because they were citizens or voters, but because of their status as attorneys.³⁸

Rather than viewing the unified bar as a state agency, the Court saw "a substantial analogy between the relationship of the State Bar and its members ... and the relationship of employee unions and their members." Borrowing from the holding of Abood, the Court held that mandatory dues could not be used for activities not "germane" to the purpose for which compelled association was justified. In the case of the compulsory bar, it found compelled association justified only by the State's interest in regulating the legal profession and improving the quality of legal services. Only if challenged expenditures were "necessarily or reasonably incurred" for those limited purposes could they be funded with mandatory dues.³⁹

The Court admitted that the line between permissible and impermissible expenditures of mandatory dues would be murky but shrugged off any need to provide clear guidance by pointing out, "the extreme ends of the spectrum are clear." Mandatory dues could not be spent lobbying on issues such as gun control or a nuclear weapons freeze; they could be spent for activities connected with attorney discipline and ethical codes.⁴⁰ The Court then held that a compulsory bar association would have to develop some procedure to assure that it would not spend mandatory dues income on impermissible activities.⁴¹

Finally, the Court concluded by leaving at least one issue open. The Keller plaintiffs had also argued that, because of the compelled nature of their membership in the Bar, their First Amendment rights to free association, including the right of disassociation, were violated by the State Bar's use of its name to engage in political or legislative activities opposed by the plaintiffs, regardless of whether or not the Bar funded such activities with mandatory dues.⁴² This argument the Court declined to address. ⁴³

In the wake of the Keller decision, compulsory bars were required to develop mechanisms to determine the amount of dues spent on activities for which dues could not be involuntarily extracted, and to allow dissenting members to deduct that amount from their dues. The results—in Michigan, at least—were eye-opening.

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²³ Railway Employees' v. Hanson, 351 US 225, 238 (1956).

²⁴ Constitutional issues surrounding the compulsory bar had popped up in some prior state court decisions, see e.g. Board of Comm'rs of Miss. State Bar v. Collins, 59 So 2d 351 (Miss. 1952). An interesting case is Petition for Rule of Court Activating, Integrating and Unifying the State Bar of Tenn., 282 SW2d 782 (Tenn. 1955), in which the State Bar of Tennessee argued that a legislative statute prohibiting a compulsory bar was unconstitu-tional under the state constitution as an infringement on the state Supreme Court's powers. The Tennessee Supreme Court refused to order unification after a poll showed a substantial majority of the state's lawyers opposed unification. Today, Tennessee remains a voluntary bar state, with substantial majority of the state's lawyers as members. Schneyer, supra n. 1 at 10.

²⁵ Lathrop v. Donohue, 367 US 820 (1961). Lathrop wrote to the Treasurer of the State Bar, "I do not like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities . . ." Lathrop, 367 US at 822. Neither the Supreme Court's opinion nor that of the Wisconsin Supreme Court indicated the nature of the legislative activities and positions to which Lathrop objected. His dues were $15 for the year. Id.; Lathrop v. Donohue, 10 Wis 2d 230, 102 NW2d 404, 406 (1960).

²⁶ 367 US at 844-848.

²⁷ Falk v. State Bar of Michigan, 411 Mich 63, 305 NW2d 201 (1981).

²⁸ 431 US 209 (1971).

²⁹ It would be several years before the Supreme Court specified minimum standards and procedures by which a union in such a situation could meet its obligations to refund dues pursuant to Abood. Teachers v. Hudson, 475 US 292 (1986).

³⁰ Id.

³¹ Falk 1, 305 NW2d at 202-219 (Opinion of Ryan, J.).

³² Falk I at 228 (opinion of Williams, J.). One wonders how the state of Michigan survived between statehood in 1835 and the unification of the bar in 1937!

³³ Falk 1, 305 NW2d at 201, 241-247.

³⁴ Falk v. State Bar of Mich., 342 NW2d 504 (1983).

³⁵ 496 US 1 (1989).

³⁶ Id. at 4, 5-6 n. 2.

³⁷ Keller v. State Bar of California, 47 Cal 3d 1152 (1989).

³⁸ 496 US at 11, 13.

³⁹ Id. at 13-14.

⁴⁰ Id. at 15-16.

⁴¹ Id. at 17.

⁴² The Supreme Court has long recognized that the First Amendment protects the right not to be associated with certain beliefs. West Virginia State Bd. of Educ. v. Barnette, 319 US 624 (1943)(flag salute by public school children can not be compelled); Wooley v. Maynard, 430 US 705 (1977)(requiring individual to display motto, "Live free or die," on license plate violated right to "refrain from speaking."). This right has only been recognized, however, where the individual is in some way compelled to voice positively the objection-able viewpoint. Still, it is hard to see how anyone would think that the driver of the car any more supports the slogan placed by the state on his license plate than a lawyer supports the positions of the compulsory state bar of which she is a member. Indeed, as many citizens do not realize that state bar membership is mandatory, but know that a state auto license is required, it seems more likely that people would mistake membership in the bar for support of the bar's positions. Forced association through compulsory bar membership, therefore, seems the more intrusive and misrepresentative of the two. See also Lathrop, 367 US at 877-885 (Opinion of Douglas, J., dissenting).

⁴³ 486 US at 17.

Coping with Keller

A. Voting With Their Feet.
The Michigan State Bar Experience With Dues Deductions

In 1991, the first year in which the Michigan State Bar allowed dissenting members to deduct dues pursuant to the Keller decision, 24 percent of the Bar's members exercised this right. In 1992, a year in which the State Bar conducted a major campaign to persuade members not to exercise their right to deduct dues, 22 percent of members still took the deduction. In 1993, the percentage of the state's attorneys exercising their option to deduct dues leaped to 48 percent. ⁴⁴ In other words, by 1993, nearly half of Michigan's lawyers disassociated themselves from positions taken by the State Bar.

One might speculate as to the reasons for the increase in the number of attorneys refusing to support the Bar's lobbying activities, and indeed Bar leaders have done so. Writing in the Michigan Bar Journal, Executive Director Michael Franck argued that while "a significant number of members object generally to our lobbying and other ideological activities . . ., [t]he available data also suggests, however, that a significant rationale for exercising the deduction/diversion option is simply a desire to reduce the amount which must be paid to retain active membership in the State Bar of Michigan."⁴⁵ Franck has also deplored the practice adopted by some employers of limiting their payments of Bar dues on behalf of their attorney employees to the amount for which mandatory dues could be collected under Keller, leaving it to the individual attorney to pay the optional portion of the dues from his or her own pocket. Franck has attacked such individuals and employers for converting First Amendment rights into "a business opportunity."⁴⁶ While Franck's position almost certainly applies to some attorneys claiming the dues deduction, the complaint ultimately seems misguided.

First, there is reason to believe that as members learned more about the State Bar's lobbying and ideological activity, they became more likely to request a dues deduction. After the Bar's campaign against deductions in 1992, the percentage of attorneys requesting dues deductions doubled in 1993. As State Bar Vice-President Jon Muth stated, "the more information we gave, the higher the rate of deductions."⁴⁷

Furthermore, the percentage of lawyers deducting dues was not the only sign of wide-spread lawyer dissatisfaction with State Bar legislative activities. For example, a non-scientific, mail-in poll conducted by Michigan Lawyers Weekly found that 69 percent of those responding favored a voluntary bar over the mandatory State Bar. The primary reason for this preference was not economic, but opposition to the Bar's ideological advocacy.

Lawyers responding to the survey attacked the State Bar as, "shills for plaintiffs," "an-other inflated bureaucracy," and an "old buddies" network. Others wrote that the Bar "does not represent the consensus of its members," that it is "dominated by the Negligence Section and other special interests," and that it "does [not] strive to present a balanced recitation of facts or law to the issues." Complained one member, "I am embarrassed at the positions the State Bar takes."⁴⁸

While one should avoid placing too much emphasis on a relatively small and self-selected sample, the mail poll supports the conclusion that the steady increase in dues deductions arose out of significant dissatisfaction with the State Bar's positions, not a desire to save the $15 portion of dues supposedly earmarked to lobbying and political activity.

Franck's emphasis on the refusal of some employers to pay the full dues for their attorneys seems equally misplaced. One such employer is the Michigan Attorney General's Office. As Christopher Dewitt, a spokesperson for the Attorney General's Office, says, "If our attorneys want to pay the legislative portion, that's their choice."⁴⁹ The fact that those lawyers were unwilling to pay even the deductible portion of the dues—an amount which never exceeded $25—indicates that those lawyers did not support the Bar's ideological activities.

Indeed, just as Franck assumed that some members choose to deduct dues for economic, rather than political, reasons, we may safely assume that many attorneys did not deduct dues even though they opposed the Bar's legislative positions. Some of these attorneys paid their full dues from a sense of obligation-after all, voluntary bars in other states routinely claim membership of 70 to 90 percent of the state's lawyers, many of whom stay in the association despite disagreement with the bar's legislative stands.

Certainly, many Michigan lawyers paid their bar dues without paying attention to the deduction option, especially lawyers whose bills were routinely paid by a secretary, book-keeper, or spouse who may not have discussed with the attorney whether or not to take the deduction. Finally, there were undoubtedly some lawyers still unaware of the deduction option available pursuant to Keller.

From a Constitutional standpoint, these reasons for paying the full dues amount despite opposition to particular ideological activity may not create a problem. However, the argument that the high percentage of dues-deducting members was a product of economic incentive rather than true opposition to State Bar ideological positions must be tempered with the possibility that opposition to the Bar's activities actually exceeded 50% in 1993.

In any event, by the spring of 1993 it was clear that the Michigan State Bar was careening towards crisis. Half of the bar's members were "voting," through the dues deduction option, not to support the bar's activities. Even if many members were deducting dues for economic rather than ideological reasons, the number was an embarrassment to the bar and bar leaders, for it indicated that members did not feel that the bar's activities were worthy of support at the existing dues rate. Changes had to be made, lest the Bar find itself with a majority of its members on record as disassociating themselves from the official legislative positions of the Bar.

After considering the Bar's options, the Board of Commissioners decided effectively to abandon most of the lobbying field by adopting an approach first pioneered by Florida's compulsory bar association.

B The "Florida" Solution

In 1984, the Florida Bar Association, a compulsory bar, took a public position against a state ballot initiative to limit state spending. This prompted a lawsuit challenging the Bar's use of compulsory dues for such ideological activity. Taking the position later adopted by the U.S. Supreme Court in Keller, the U.S. Court of Appeals for the Fifth Circuit held that while the bar could lobby for any purpose, it could not use the involuntary dues of dissenting members to support ideological activity unrelated to the administration of justice.⁵⁰

Further litigation then arose over the procedure adopted by the Florida Bar to comply with the Court's ruling, with dissenting members claiming the right to an advance dues deduction, and the Bar arguing that it was only required to calculate and rebate dues spent on ideological activity after the fact.⁵¹ Nine months after deciding Keller, the U.S. Supreme Court granted certiorari to hear the case.

However, before the case was heard, the Florida Supreme Court issued an order limiting the Florida Bar's lobbying activities to five areas: 1) questions concerning the regulation and discipline of attorneys; 2) matters relating to the improvement of the functioning of the courts, judicial efficacy, and efficiency; 3) increasing the availability of legal services to society; 4) regulation of attorneys' client trust fund accounts, and 5) the education, ethics, competence, integrity and regulation of the legal profession.⁵² As a result of this order by the Florida Supreme Court, the Florida Bar argued that it could not legally engage in any Keller prohibited activities. Therefore, it followed that no mechanism for advance dues deductions was necessary as all its activities could be lawfully supported by compulsory dues. The U.S. Supreme Court then dismissed the writ of certiorari as "improvidently granted."⁵³

In March of 1993, the Michigan State Bar Board of Commissioners, following the Florida example, recommended that the Bar discontinue all so-called Keller activities.⁵⁴ The Bar would no longer engage in ideological activity that would require a Keller dues deduction option. At two stormy meetings of the Bar's Representative Assembly, in April and June, 1993, the proposals were debated.

Those opposed to adopting the "Florida solution" generally argued that the Bar's involvement in a broader legislative agenda was important to the public and to lawyers. Former Michigan State Bar President Donald Reisig argued, "Why—when we as a profession are threatened—would we get out of the legislative business?" Reisig went on to argue that if other members chose to exercise their Keller deduction, "I'll gladly carry my fellow lawyers' load."

Against these arguments, those favoring the "Florida solution"—including most of the Bar's leadership—argued that the Bar could not continue with just 52% of its members supporting its legislative activities. The only alternative to the Florida solution, they argued, was a voluntary bar. A voluntary bar, one argued, "would really eviscerate the state bar." Said another, "at stake is the continued existence of this organization."⁵⁵

These hysterical assertions seem laughable in light of the existence of vibrant, active voluntary bars in 19 states, including the neighboring states of Minnesota, Illinois, Indiana, and Ohio. Arguing that few or no lawyers would remain members of the Michigan State Bar absent state compulsion, the speakers seemed unaware of the damning indictment this argument made of their own leadership, of the benefits of membership in the State Bar, and of the professional commitment of their fellow lawyers.

Reisig, and others opposed to adopting the "Florida" solution, never seriously considered the obvious alternative—a voluntary bar. From the start, the most vocal supporters of continued Keller lobbying assumed, as did their opponents, that the compulsory bar must continue.

In the end, "an overwhelming majority" of the Assembly approved the proposal to abandon Keller lobbying and to seek an order from the Michigan Supreme Court essentially identical to that governing the Florida Bar, specifically prohibiting the Michigan State Bar from engaging in Keller prohibited lobbying. On July 30, 1993, the Michigan Supreme Court issued the requested order, and the Michigan State Bar embarked on a new era of limited legislative activity and, it hoped, peace with its dissenting members.

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⁴⁴ Franck, supra, n. 6 at 277. The State Bar actually allowed members either to deduct the amount spent for impermissible lobbying from their dues or to divert that amount to the Michigan State Bar Foundation, a non-profit foundation started by the bar some years previous. In 1991, four percent of the members chose the diversion option. Two percent chose to divert dues in 1992 and seven percent in 1993. The remainder of those who objected to the Bar's lobbying activites simply deducted the amount from their total dues. In 1993, the amount of the Keller deduction was $15, or 7.5 percent of total Bar dues. Id.

⁴⁵Id. at 276.

⁴⁶Id.

⁴⁷Marcia McBrien, Representative Assembly Puts End to Keller Lobbying Activity by State Bar, Mich LW, June 28, 1993, at 3.

⁴⁸McBrien, Poll Respondents, supra n. l, at 1.

⁴⁹ Marcia McBrien, Bar Commissioners to Ask for End to Keller Lobbying, Mich LW, March 8, 1993.

⁵⁰ Gibson v. The Florida Bar, 798 F2d 1564 (5th Cir. 1986).

⁵¹ Gibson v. The Florida Bar, 906 F2d 624 (5th Cir. 1990).

⁵² The Florida Bar re Schwarz, 552 SW2d 1094, 1095 (Fla. 1989).

⁵³ Gibson v. The Florida Bar, 112 SCt 633 (1991).

⁵⁴ McBrien, supra n. 35.

⁵⁵ Marcia McBrien, supra n. 33 (quoting State Bar Vice-President Jon Muth and President-Elect Michael Dettmer, respectively).

The Future of the Unified Bar

A. Is the "Florida Solution" a Workable Answer to the Problems of the Unified Bar?

On the surface, the "Florida Solution" adopted by the Michigan State Bar solves the dilemma posed by Keller. On closer inspection, however, the "Florida solution" strips the Michigan State Bar of the ability to undertake many activities performed by voluntary bars in other states, yet does little to resolve the problems posed by Keller.

The first problem with the Florida solution is that it shifts the locus of, but does not eliminate, questions over the political activities of the bar and the rights of dissenting members. The Michigan Supreme Court order under which the Michigan State Bar now operates purports to limit the Bar's legislative activity to activities "reasonably related to" five different areas:

1. "The regulation and discipline of attorneys;"

2. "matters relating to the improvement of the functioning of the courts, judicial ethics, and efficiency;"

3. "Increasing the availability of legal services to society;"

4. "Regulation of attorney trust accounts;" and

5. "The education, ethics, competence, integrity and regulation of the legal profession." Additionally, compulsory dues may be used to provide "content neutral" assistance to legislators .⁵⁶

The problem is that none of these terms are self-defining. It may be easy, for example, to say that under the above rule, the Michigan State Bar may not take a stand, pro or con, on proposed rent control legislation. However, suppose that the State Bar adopted a position supporting a proposal to provide free legal representation to tenants in eviction proceedings or other landlord-tenant disputes. On the surface, this would clearly fall within the third criterion listed above, "increasing the availability of legal services."

Yet such a position may be staunchly opposed by many Bar members. Some would argue that it would encourage marginal or frivolous suits by tenants and thus raise the overall cost of housing to poor people. Others may simply object that this is a wasteful and inefficient use of societal resources, because the added legal services may provide less benefit to society than spending the money on a different program, or simply reducing spending.⁵⁷

For the purpose of this report, the merits of any particular proposal are inconsequential. The point is that taking a position on such an issue would surely create an ideological debate every bit as real as the Bar taking a position on rent control. The fact that the issue is arguably related to expanding the availability of legal services hardly responds to the complaints of dissenting members that they are being forced to subsidize ideological or commercial activities with which they disagree.

In fact, this is exactly what has happened in Florida. Although the Florida Bar theoreti-cally engages in no Keller prohibited lobbying, it still maintains a dues rebate procedure through which members can challenge activities of the Bar as falling outside the bounds of Keller permissible activity. In practice, the Florida Bar does not contest any request from a dissenting member for a dues rebate, preferring to concede and make a partial dues refund rather than to become bogged down in endless arbitrations over its admittedly truncated legislative program.

To date, the number of objectors in Florida has been relatively small, with a total of 44 members objecting to Florida Bar positions between September 1, 1992, and August 31, 1993.⁵⁸ This small number would seem to reflect the fact that the Florida Bar takes relatively few public positions, so as to comply with its restrictions on lobbying; the rather paltry size of the rebate ($8.52 plus interest in 1993), and the fact that the objector must request a rebate, in writing, within 45 days of the publication of the Bar's position. Presumably Michigan, too, will have far fewer deductions under the new scheme than it has had for the past three years, but the need for a rebate procedure, and the possibility of further litigation, will not go away.

Indeed, whether or not the number of challenges in Michigan would begin or remain small will undoubtedly depend on many factors, the most important being the extent to which the Michigan State Bar refrains from taking positions, and the determination of dissenters from State Bar positions to stand their ground.

For example, during the 1991-92 session of the Michigan legislature, the Michigan State Bar took positions on 58 pieces of legislation.⁵⁹ If the current rule had been in place for that session, the Bar would have acted on far fewer issues.

However, even under the new rule, one issue that would probably have been deemed a permissible target of lobbying would have been H.B. 6029, a proposal to adopt the so-called "English Rule" of requiring the losing party in a civil lawsuit to pay the winning party's legal fees .⁶⁰ The Bar could justify involvement in the matter under the rubric of expanding the availability of legal services, and possibly as a matter pertaining to the efficiency of the courts and the integrity of the profession. Nevertheless, any position taken by the Bar on this issue--pro or con--could surely be legitimately challenged as being beyond the boundaries of Keller.

Adoption of the "English Rule" was a favorite notion of former Vice President Dan Quayle and has been hotly debated not only in legal journals, but also on various editorial pages. Should a significant number of dissenters challenge a position of the Bar on such an issue, the Bar would be forced to continue to refund dues to large numbers of its members, or to engage in an expensive arbitration-possibly followed by further litigation-which it might very well lose.

Indeed, it is hard to imagine any issue that might not be challenged by dissenting members of the bar. For example, Federal Rule of Civil Procedure 41 allows a plaintiff to dismiss a civil lawsuit without prejudice to reinstituting the suit in the future only if done prior to the Defendant filing an answer, which must normally be done within 20 days of the filing of the complaint. Some state court systems, however, allow a plaintiff to dismiss a suit without prejudice virtually until the time of trial. Reform of a state rule to match the federal rule would seem to be precisely the type of narrow, technical issue on which the bar could expend mandatory dues to lobby. Surely it would seem to fall within "improving the efficiency of the courts." Even this issue, however, would be highly political, because the federal standard is generally viewed as being more favorable to defendants, and the state standard more favorable to plaintiffs.

Similarly, the opening for providing the legislature with "content neutral" advice on legislation also provides no safe harbor for Bar lobbying. Any actual conclusion on the merits of legislation, for example, would be prohibited unless the legislation could be fit into one of the five categories left open for Bar lobbying. As we have just seen, this task is more complicated than it at first appears.

Even a supposedly neutral listing of "advantages" and "disadvantages" of legislation would be likely to be challenged by members who view the Bar's analysis as one-sided, rather than truly "neutral." In the end, the Bar would be able to do little more than point out technical errors of draftsmanship—for example, incorrect citations to other affected portions of the Michigan Compiled Laws, or failure to specify available remedies. Whether this service is much needed, in light of the legislative staff already available to lawmakers, is debatable.

Thus, though a position taken by the Bar might seem to fit with the permissible scope of lobbying activity, the Bar could not rest easy. Although the Supreme Court in Keller found that no dues rebate was needed for lobbying on matters related to improving the quality of justice, logically it is hard to see why a person should be compelled to fund an association's propagation of views. with which she or he disagrees, merely because these views relate in some way to the quality of justice and the person happens to be a lawyer. As we have seen, apparently benign proposals often involve significant philosophical disputes over the role of states in our federal system of government, differing attitudes towards various types of business activity, or divergent beliefs about the economic effects and social wisdom of encouraging or discouraging different types of claims.

Faced with a specific case involving such a "technical" issue, it would require no significant stretch for the Supreme Court to expand upon Keller and hold that all lobbying is impermissible if undertaken with compulsory dues. A minority determined to test the full extent of its rights could drag the bar into endless arbitration and litigation over virtually every piece of legislation supported or opposed by the Bar.

The cost to the compulsory bar of gaining the rather illusory advantages offered by the Florida solution is the abandonment of much of the legislative field on which their colleagues in voluntary bar states remain eligible to play. On the one hand, we have seen that restricting lobbying activities to "non-ideological" matters offers no safe harbor from dissident challenges. At the same time, the restricted subjects of permissible lobbying clearly force the Bar to remain silent on issues that significantly affect its members, and on which its members might reasonably be expected to offer particular knowledge or expertise to the public.

For example, under the Florida Solution, the Bar will no longer be able to lobby on tort reform, even if a substantial majority of its members favor a particular position on proposed legislation.⁶¹ The organized bar will also have to remain silent on issues such as national health care reform, despite the tremendous impact which reform is expected to have on the profession.⁶²

Above all else, the Florida solution will not allow the compulsory bar to escape the fundamental controversy which has dogged it for at least two decades--the conscription of thousands of lawyers who do not want to be members.

B. The Voluntary Alternative

The advantages of coercive membership in a state bar have always been more rhetorical than real. In his comprehensive 1983 study of unified bars, Professor Theodore Schneyer was unable to find any tangible advantage to a compulsory bar. Although it was often possible to find isolated examples to the contrary, as a whole Schneyer found that com-pulsory bar associations lagged behind voluntary bars in providing member benefits and continuing legal education programs. States with compulsory bars have generally been slower to adopt regulatory programs beneficial to consumers, such as client security funds, than voluntary bar states. Compulsory bars have never demonstrated an edge over voluntary bars in providing pro bono legal services or in increasing the availability of legal services. Schneyer similarly found no connection between compulsory bars and the ethical codes adopted by the various states, nor between the compulsory bar and attorney discipline.⁶³

The ten years since Schneyer's study have produced no new studies favoring the compulsory bar on any of these fronts. Although supporters of the compulsory bar frequently make conclusive statements about the benefits of compulsory membership, no commentator has found empirical evidence to suggest that compulsory bars are more successful than their voluntary counterparts in any of the above referenced areas of activity.

Despite the lack of evidence to support their assertions, compulsory bar supporters nonetheless continue to argue for the necessity of a compulsory bar to carry out various missions. In fact, there are simple, logical reasons why these assertions remain unsupported by real world evidence.

Consider, for example, the common justification that a compulsory bar is necessary to assure attorney competence and discipline. Under the new Michigan State Bar dues structure, lawyers will pay $90 per year to the State Bar to fund attorney discipline.⁶⁴ In Ohio, a voluntary bar state, attorneys pay just $50 per year—to the Ohio Supreme Court—to fund grievance and disciplinary activities. There is simply no reason that these functions must be done through a compulsory bar association, and, in voluntary bar states such as Ohio, they are done by state agencies.

There are, however, public policy reasons to prefer that the discipline of attorneys should not be in the hands of the state bar, not the least of which is the temptation for private groups vested with such power to use that authority to stifle competition or dissent.⁶⁵ In any event, the Michigan State Bar has been stripped of much of its substantive formal role in such regulation, and so this cannot justify continuance of a compulsory bar in Michigan.

Though the compulsory bar offers no advantage in terms of regulation, an alternative justification sometimes offered in defense of the compulsory bar is that the compulsory bar has programmatic advantages over voluntary bars. The argument is simple—the added resources of coerced dues and membership enable the bar to do more in the way of pro bono programs, legal education, and other programs to benefit lawyers or the public. Again, however, on reflection, the reasons why no commentator has been able to document any truth to this assertion are simple and straightforward.

First, coerced membership does not give the bar more access to added human capital. Lawyers who do not wish to give their time to the bar voluntarily are unlikely, and indeed perhaps less likely, to do so merely because they are forced to join. Unless states—and the courts—are willing not only to force lawyers to belong to the bar, but also to commandeer their participation in bar functions and programs, there is no net gain in human resources. In fact, the compulsory bar dissipates considerable human capital in the constant infighting between lawyers who do not want to be members of the bar association and those who want to coerce their colleagues into joining.

Still, one might assume that those members who do want to participate in bar programs will have greater financial resources owing to the coerced dues taken in from other lawyers. Leaving aside the question of what percentage of the unified bar's income is spent in accommodating and fighting with fellow lawyers seeking to exit the association, the dues issue is vastly overblown. The Michigan State Bar presently receives nearly 80% of its income in the form of member dues.⁶⁶ However, most voluntary bars have developed other sources of income and have been able to lower significantly their reliance on dues. In Ohio, dues account for approximately 55% of the Ohio State Bar Association's income.⁶⁷ Other voluntary bar associations have relied on dues for as little as 30% of revenue.⁶⁸

Virtually all voluntary state bars boast regular membership of at least 70% of the state's lawyers, with some having greater than 90% of the state's lawyers as members. The member-ship rate in Minnesota's voluntary state bar has recently been above 90%; in Illinois it typically runs 70% or more; Indiana's voluntary membership is 87%; Ohio's 70%; and Wisconsin retained 85% membership when it switched from a compulsory to a voluntary bar in 1988.⁶⁹

Assuming a dismal outcome in which a voluntary Michigan Bar retained only 70% of its members and continued to rely on dues for 70% of its income, the Bar would face a budget cut of approximately 20%. In a more optimistic scenario, in which the Bar garnered 80% participation and reduced its reliance on dues to 50% of income, the budget would be cut by less than 10%. Of course, the Bar would also no longer have to provide benefits to coerced members who would prefer not to have them, thus reducing some costs.

Certainly the Bar could survive with a 10% to 20% reduction in income. While the Michigan State Bar has approximately 671 members per staff person, Indiana has approximately 909 members for each state bar staffer, and Ohio approximately 954 members for each staffer.⁷⁰

Furthermore, Schneyer found substantial evidence that voluntary bar associations were actually better able than compulsory bars to raise money and usually had higher levels of per member funding than mandatory bar states. Schneyer hypothesized that this may be due to resistance to dues increases, in compulsory bars, by those members who would prefer not to be members of the compulsory bar at all.⁷¹ However, it may also be due to the different nature of the payment of dues. Where dues are mandatory, lawyers may view the bar as a taxing authority, to which no more than necessary need be paid.

Lawyers, generally an individualistic lot, may be more willing to support an increase in fees to their professional organization than to a perceived taxing authority. In a voluntary bar, members must think about the value of membership and their own commitment to the profession. Thus, the Ohio bar has been successful in convincing many members to pay an amount far in excess of regular dues to become "sustaining members," a title with nothing more than honorary significance. Ohio lawyers pay between $60 and $225 extra per year in dues for this designation.

Even if involuntary dues income does increase the resources available to a compulsory bar, there is no evidence that these resources translate into added benefits for the public or bar association members. Like its Michigan counterpart, for example, the voluntary Ohio State Bar Association provides its members with access to insurance, discounts, continuing legal education programs, and a regular magazine-type publication. Additionally, Ohio lawyer members receive a weekly magazine with updates on legislation and the full text of newly reported court opinions—a service no mandatory bar in the country provides. The Ohio State Bar carries on an active legislative program and programs to mentor young lawyers. It assists lawyers with ethical or substance abuse problems and sponsors numerous public education programs. The Ohio State Bar is able to do this despite a relatively low member-ship rate—compared to other voluntary bar states—of approximately 70% of the state's attorneys.

In the field of pro bono legal services, there is no suggestion that legal services for the poor and indigent are more readily available in Michigan than in Ohio or the other voluntary bar states surrounding Michigan. In Ohio and many other voluntary states, local bar associations are particularly active in providing pro bono legal services. It is generally conceded that forcing all lawyers to belong to the state bar inhibits the development of voluntary, local bar associations. It seems likely that by hurting enrollment in local bar associations, a compulsory bar stymies local pro bono efforts. The provision of legal services is done locally, and local needs differ greatly from place to place. Again, the compulsory nature of dues in a unified bar may make even non-dissident members view their dues as a tax, relieving them of pro bono responsibility. Thus, a unified bar may actually stifle pro bono activity.

Whatever the reasons, as Schneyer found 10 years ago, there is simply no tangible, programmatic advantage to a unified bar.

Lacking meaningful evidence of any programmatic benefits to unification, compulsory bar supporters often argue that there are non-programmatic advantages to the compulsory bar that justify its existence even if it provides no tangible programming benefits. Here, too, such advantages seem illusory, at best.

One claimed advantage is that a compulsory bar allows the profession to speak with one voice. In light of the ongoing lawsuits brought by dissident members over unified bar political activity, this argument may turn reality on its head. The unified bar, in fact, exacerbates the tensions within the profession and makes the level of membership support for every position asserted by the bar suspect. Where members cannot "vote with their feet," it is always difficult for lawmakers or the public to know the true level of support.

At the same time, a compulsory bar, since Keller, can exaggerate the degree of dissension within the profession by assuring a fractured voice. This occurs because, under a compulsory bar, a dissident attorney can request a dues deduction at no cost. If the member disagrees with any position of the bar strongly enough, he or she can collect a rebate, even if he or she agrees with a majority of the positions of the bar. The dissident attorney need not give up benefits of bar membership, nor the right to try to shape bar policy on other issues of concern.

In contrast, under a voluntary system, an attorney who disagrees with a bar association position must either pay the full dues or leave the association entirely, thereby forfeiting member benefits and the opportunity to engage in further policy discussions on the issue in question or on other issues. This gives members a strong incentive not to drop out merely because they disagree with a few, or even all, positions taken by the bar. In this respect, the voluntary bar forces lawyers to concentrate energies on common interests, not disagreements, and presents the public with a confident, unified voice, rather than one hoping that its dissidents won't create too big a scene if it chooses to speak on an issue.

It is also suggested that a mandatory bar is necessary to assure that all lawyers are steeped in the tradition of the law and that their sense of professionalism is carefully nurtured through-out their careers—presumably through forced association with bar activists who represent the highest standards of the profession. Even beyond the self-congratulatory nature of the argument, this view borders on the specious. How, one might ask, can one expect lawyers happily to find professionalism by being conscripted into an organization they would prefer not to join? Resentment of the profession's norms, as determined by the bar, seems the more logical result. Furthermore, the compulsory bar still cannot force enthusiastic participation, but only sullen, involuntary association. Unless we are prepared to force lawyers not just to join, but to participate actively in the bar, nothing is gained by mandatory membership.

Furthermore, the argument is based on a flawed perception of reality. Virtually all lawyers in the United States, and all lawyers seeking to practice in Michigan, must first pass through the unifying experience of three years of law school, with a mandatory ethics component. Lawyers must then pass a bar examination and an investigation of their back-ground for character. Continuing legal education, including an ethics component, is required while in practice.⁷² Also, the overwhelming majority of lawyers in voluntary states belong to either their state association, a local association, or the American Bar Association. All Michigan attorneys are subject to the authority of the state supreme court and the Attorney Discipline Board. Thus we find that lawyers are, from the inception of their legal education and throughout their careers, imbued with professional norms.

No Ohio, Indiana, Minnesota, or Illinois lawyer would take seriously the assertion that a mandatory bar is necessary to promote professionalism, and it is doubtful that many Michigan lawyers, including those in favor of a compulsory bar, would feel that their own level of professionalism would be diminished if they could no longer coerce their colleagues into the association.

It is also sometimes argued that the compulsory bar assures participation of women, minorities, and rural attorneys in the bar. Once again, the argument seems to be that forced association with the bar will necessarily result in participation and a sense of inclusion. Also once again, the argument hardly seems worthy of serious consideration. In fact, it seems more likely that the opposite is true: a unified bar able to force such under-represented groups to join has little incentive to develop programs or sensitivity to the concerns of these groups. Voluntary bars must truly reach out to include such groups. The Ohio State Bar Association, for example, has recently completed a major study of women in the profession, devoting an entire issue of its members' magazine to a report of the results.⁷³

Another supposed advantage of the mandatory bar is that it eliminates free riders, i.e., lawyers who benefit from the Bar's activities but refuse to pay for them. This it does, although it is not clear why "fairness" dictates that free riders be eliminated. If this is why a compulsory bar is necessary, all other professional associations, trade associations, labor unions and lobbying groups could make the same claim. We might, to use this logic, require all small business owners to belong to the National Federation of Independent Business, or all consumers to join the Consumers Union. We might also require all citizens to donate to the American Red Cross, as the activities of that organization benefit society generally.

The last argument commonly resorted to by defenders of Michigan's compulsory bar is not really an argument at all, but a statement of fact—many states have unified bars, and the Supreme Court has not struck down the unified bar as unconstitutional.

In Michigan, compulsory bar defenders often point to Wisconsin, a neighboring state which was unified by a state supreme court order after legislative efforts at unification had failed. After a 1988 United States District Court ruling forced Wisconsin to drop its mandatory membership requirement entirely, the Wisconsin bar functioned as a voluntary association. When Keller opened the way for reunification if dues deductions were available to dissenting members, the Wisconsin Supreme Court, which had previously upheld the unified bar against frequent challenges, again conditioned the practice of law on membership in the State Bar of Wisconsin.

Though the request for a unification order came from the State Bar, Wisconsin's experience with a voluntary bar should hardly be interpreted, as Michigan State Bar officers have attempted to do, as a failure. During four years of voluntary operation, Wisconsin's bar membership remained very high, in excess of 80%.⁷⁴ The bar moved much more aggressively into the provision of continuing legal education programs than it had in the past, reduced its reliance on dues income, and remained financially sound.⁷⁵ There was no reported increase in disciplinary actions or ethical violations.

When the Bar's leadership considered reunification after Keller, the Association's Executive Director opposed reunification. No formal survey or vote was taken of Wisconsin lawyers. At the time, membership was running at approximately 80%, and it is fair to assume that the overwhelming majority of those who had not joined the voluntary bar opposed reunification. Thus, even if Association members had favored reunification by a 60%-40% margin, the reunification would have been opposed by a majority of the state's lawyers.

In fact, many observers believe that a majority of Wisconsin lawyers, especially younger lawyers, opposed reunification. However, the Board of Governors, which requested the order, and the Supreme Court, which issued the order, had always been on record as favoring reunification. It was, as one State Bar member and supporter of a voluntary bar stated, "always a foregone conclusion that the Board would request and the Supreme Court would order reunification."⁷⁶ Interestingly, the Committee appointed by the Bar to argue for reunification did not, in its report, cite a single program or issue that had been rendered ineffective, reduced in scope, or discontinued by the move from a compulsory to a voluntary bar in 1988.⁷⁷

Thus, the Wisconsin experience represents no victory for the work of the compulsory bar, any more than does the fact that the Michigan Bar is unified at the present time. Compulsory bars should be evaluated on their merits. Unless supporters can point to real benefits, the intrusion on the rights of lawyers cannot be justified. The sad fact that the Wisconsin Bar's Board of Governors and State Supreme Court were eager to return to coerced membership does not represent a victory for the effectiveness of the unified bar.

Against these non-existent benefits must be juxtaposed tangible disadvantages to the unified bar. By opting for the Florida solution, the Michigan bar may have taken a step necessary to its ongoing viability as a unified bar, but one which gives it far less of a role in public affairs than it would have had it chosen to become a non-coercive association.

In the wake of Keller, there are public disadvantages to the compulsory bar as well. Under the public agency model, the bar would operate under heavy state control, an option which is unsatisfactory to most attorneys and would probably result in the creation of a voluntary bar operating alongside the mandatory bar.⁷⁸

In the labor union model of the unified bar adopted by the Supreme Court in Keller, state oversight of the bar is lessened, but is conducted less for the broader public good than to protect the rights of dissenting lawyers trapped in the compulsory bar. In a voluntary bar state, on the other hand, the state can directly assume the regulatory functions properly conducted by the state rather than by a private organization, and regulate these issues in the public interest while leaving lawyers to tend to the broader issues of professionalism and to pro bono, educational, and other programs. Thus the compulsory bar is less likely to serve the public interest than the voluntary bar, in which lines of demarcation between state authority and private action are more clear and the state need not intervene in the private operations of the organization except if necessary to further some higher public good.

Moreover, as we have seen, the Florida solution is not likely to stop the ongoing infighting over the bar's activities and the compulsory membership of unwilling attorneys. The Michigan State Bar will be required to face regular arbitrations against its own members or continue to refund dues to any lawyer making such a request.

Lawyers who object to the State Bar's advocacy of positions with which they disagree will are unlikely to be mollified by a dues deduction that will almost certainly fall below $10. It seems clear that the crux of dissenting lawyers' complaints comes not from the dollar support which they must give to positions they oppose, but from a more deeply rooted sense of being forcibly linked with positions of the State Bar through compulsory membership.⁷⁹

The compulsory bar has generally responded to this complaint by arguing that dissenting members remain free to express their views individually, and the public does not presume that all members agree with the bar's official position.⁸⁰ Surely this response misses the point. The fact is that lawyers are compelled to associate with those with whom they would prefer not to associate and linked in the minds of many to views they do not espouse.

No one would seriously suggest that if lawyers were forced to join the Ku Klux Klan as a condition of practice, their concerns would be mollified because they could individually dissent from Klan positions. Conceding that the Michigan State Bar is a less odious group than the Ku Klux Klan does not change the sense of invasion felt by those who would prefer not to link themselves to the State Bar. Thus, the compulsory bar will almost certainly remain a source of controversy and division within the legal profession.

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⁵⁶ Mi SCt Admin Order 1993-5 (July 30, 1993).

⁵⁷ See Jonathan R. Macy, Not All Pro Bono Work Helps the Poor, The Wall St J, December 30, 1992 at A7.

⁵⁸ Confidential memorandum from Paul F. Hill, General Counsel to the Florida Bar, to the Board of Governors of the Florida Bar, dated Sep. 1, 1993.

⁵⁹ Legislative Report, Mich. B J, Feb. 1993 at 242.

⁶⁰ In fact, Michael Karwoski, Assistant Executive Director for Programs and Governmental Relations of the Michigan State Bar, has indicated his opinion that H.B. 6029 could be lobbied under the new rule. Letter from M. Karwoski to Bradley A. Smith, July 19, 1993. It should be noted that this is a personal opinion and does not mean that the Bar would still have taken a position on this issue, or that the Bar's Board of Commissioners or Representative Assembly would have agreed that it was a permissible subject of lobby-ing. However, the very fact that such disagreement might exist exposes the difficulty of implementing the Bar's new approach.

⁶¹ McBrien, supra n. 35 (quoting Michigan State Bar Communications Director Thomas C. Oren.)

⁶² Rorie Sherman, Health Plan to Have Major Legal Impact, Nat L J, Sep. 20, 1993 at 1.

⁶³ Schneyer, supra n. I at 96-106.

⁶⁴ Marcia McBrien, Keller and Bar Dues Proposals Approved by High Court, Mich. L. W., Aug. 9, 1993.

⁶⁵ See Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 Stan L Rev 1 (1981); Gelhorn, the Abuse of Occupational Licensing, 44 U Chi L Rev 6 (1976).

⁶⁶ State Bar of Michigan Statement of Revenues and Expenses, Mich B J, June 1993 at 618.

⁶⁷ Dennis L. Ramey, Association Expands Member Services and Non-Dues Income, Ohio Lawyer, May-June 1993 at 4.

⁶⁸ See, e.g. Patricia Heim, The Case for a Voluntary Bar, Wis. Law., Feb. 1991 at 10. This was a slight decrease in the percentage of income from dues than in 1988, when membership was mandatory. 1988 Annual Report of the State Bar of Wisconsin, Wis B Bul, Nov. 1988, at 35.

⁶⁹ For a general, somewhat dated look at membership rates in voluntary state bar associations, see Schneyer, supra n. 1 at 10. The Illinois estimate is from Schneyer, while the Ohio figure was reported in a phone call with the author by Kate Hagan of the Ohio State Bar Association as of June 30, 1993. The Indiana figure is from Marcia M. McBrien, Will Keller Spell End for an Integrated Michigan Bar?, Mich L W Mar. 22, 1993. Wisconsin's figure appeared John Walsh, Looking to the Future, Wis B Bul, Dec. 1988, at 57. Minnesota's figure is from Irvine Charne, The Case for a Mandatory Bar, Wis Law, Feb. 1991, at 10.

⁷⁰ Denny L. Ramey, Comparatively Speaking, Ohio Law, Jan./Feb. 1990, at 4. Michigan is not particularly fat as state bar associations go-it has a higher ratio of members to staff than does Wisconsin's mandatory bar, or the voluntary bars of Minnesota and Illinois. Id.

⁷¹ Schneyer, supra, n. 1 at 14-15.

⁷² ABA Task Force on Law Schools and the Profession, Legal Education and Professional Development-An Educational Continuum, 95-112 (R. MacCrate, ed., West Pub. 1993) (1992).

⁷³ Ohio Lawyer, July/Aug. 1993. The Association has recently installed its first female president, Kathy Burke.

⁷⁴ Walsh, supra n. 55.

⁷⁵ Heim, supra n. 54.

⁷⁶ Patricia Heim, Chair of the Special Committee to Recommend a Voluntary Bar, in a phone conference with Bradley A. Smith, Sep. 23, 1993.

⁷⁷ Charne, supra n. 55. It is interesting to compare the Committee's report to the predictions made by unified bar supporters immediately after the court decision that temporarily abol-ished the compulsory bar. See Ron McCrea, Bar at Crossroads: Mandatory or Voluntary, Wis B Bul, July 1988 at 11. The fears expressed at that time-huge membership losses, massive dues increases, mass drop-outs of minorities, women and small town lawyers, and sparsely attended programs-do not seem to have come about, but the committee called for reunification anyway, offering conclusive statements about the benefits of unification.

⁷⁸ This is exactly what occurred in Louisiana when Huey Long created a unified bar as a true public agency. See n. 7 supra, and accompanying text.

⁷⁹ Schneyer, supra n. 1 at 83, citing Wes Smith, Shootout at the unified Bars, B Leader, Nov.-Dec. 1978 at 11 (District of Columbia bar members objecting to the District's compulsory bar filing an amicus brief in anti-trust litigation received a dues rebate of 15 cents.)

⁸⁰ See Franck, supra n. 1; Falk 1 at 233 (Opinion of Williams, J.); In re Unification of N.H. Bar, 248 A2d 709, 713 (N.H. 2968).

Conclusion

"If lawyers, the vindicators of justice, cannot protect their own right of private judgment, surely they cannot preserve their commitment to advocate for the First Amendment rights of others."
     Popejoy v New Mexico Board of Bar Commissioners,
     No. CIV 92-1462JB, 1993 WL 330529 at 1
     (D.N.M. Aug. 26, 1993).

Michigan adopted a compulsory bar over 50 years ago. Today, arguments for its continued existence ring enormously hollow. Nobody would seriously argue that legal services are more affordable or available, that lawyers are better trained and the public better protected from malpractice, that justice is better served, or that attorneys or the legal system have a higher degree of prestige, legitimacy, or professionalism in Michigan than in Ohio, Indiana, Minnesota, or Illinois, all which operate with voluntary bar associations.

Against the lack of visible advantages, there are obvious disadvantages to the compulsory bar. The State Bar of Michigan, under the "Florida solution" adopted in 1993, is restricted from addressing public issues that lawyers would otherwise be entitled to address, which voluntary bar associations in other states do address, and on which the public may benefit from the knowledge or expertise of lawyers.

The Bar is required to maintain a rebate and arbitration procedure to refund dues to dissenting members.

The Bar is subjected to, and its activities restricted by, greater public oversight than that faced by voluntary associations, yet that oversight is not addressed to any perceived public benefit so much as to protecting the rights of the Bar's captive members.

Finally, the compulsory bar is a constant source of friction among the state's lawyers, as those who want out must battle with those who would force them to remain members.

It is not sufficient to argue that the Keller decision, though restricting the use of mandatory dues, upheld the basic validity of a compulsory bar. Nor is the existence of a compulsory bar in Wisconsin and many other states justification for maintaining a misguided relic of 1930s public policy. Lawyers have historically been the champions of individualism, free speech, and free association in America. As the Court noted in Popejoy, lawyers have a special obligation to support the rights of individual conscience and choice. Forced member-ship in the State Bar is contrary to this obligation and to the bar's heritage.

A return to a voluntary bar would be in the best interests of all the people of Michigan, including Michigan attorneys.

About the Authors

Bradley A. Smith

Bradley A. Smith is an Assistant Professor of Law at Capital University Law and Graduate Center in Columbus, Ohio, and an attorney with the firm of Vorys, Sater, Seymour & Pease in Columbus, Ohio, practicing in the areas of labor, employment, immigration, and elections law. Mr. Smith has briefed cases before the United States Supreme Court, the Ohio Supreme Court, and the United States Court of Appeals for the Sixth Circuit. He speaks regularly to business groups on legal issues.

In addition to his legal practice, Mr. Smith is a Senior Policy Analyst for the Mackinac Center for Public Policy. He is the author of two Mackinac Center policy studies, "The Michigan Accident Fund: A Need for Privatization," and "Tort Law and the Products Liability Insurance Crisis." Mr. Smith's articles have also appeared in the Harvard Journal on Legislation, the Wall Street Journal, the Detroit News, and numerous other daily newspapers.

From 1981 to 1983, Mr. Smith served as United States Vice Consul in Guayaquil, Ecuador. He has also worked as General Manager of the Small Business Association of Michigan and as a private consultant. A native of downriver Detroit, he is a cum laude graduate of Kalamazoo College and Harvard Law School.

Allan Falk

Allan Falk is a 1972 graduate of Yale Law School, who was admitted to the State Bar of Michigan the same year and has been practicing law since that time. Mr. Falk previously graduated from Michigan State University, where he was elected to Phi Beta Kappa and other honorary societies, was named a Woodrow Wilson fellow, and participated in Delta Phi Epsilon foreign service honorary. He has also attended courses at Leningrad (now St. Petersburg) State University and is an honors graduate of the U.S. Army Air Defense School.

In 1977, Mr. Falk was the first lawyer in the country after the Abood decision to formally challenge the use of mandatory bar dues by a unified bar organization. His pleadings and briefs were later borrowed by challengers, and used successfully, in New Mexico, Montana, the District of Columbia, the Virgin Islands, California, and Wisconsin. The motivation for this initial objection to mandatory State Bar of Michigan dues was Mr. Falk's successful lobbying, as a member of Common Cause of Michigan, for open meetings and other political reform legislation. The State Bar opposed these reforms, and used his dues in its attempt to thwart him.

Mr. Falk, however, believes that some activities of the State Bar are worthwhile, although most could be better accomplished by a voluntary organization. He has served for more than six years on the Professional and Judicial Ethics Committee and the Appellate Court Administration Committee of the State Bar of Michigan. He is also a North American bridge champion, author of three books on the subject, and a member of the International Bridge Press Association.