Because Arizona lawyers are forced to join and fund the State Bar of Arizona in order to practice law, the Bar’s mandatory dues are a “form of compelled speech and association” that intrude on First Amendment rights. This legislative session, the mandatory membership State Bar of Arizona has again been aggressively lobbying against the voluntary bar legislation under consideration by the Arizona House of Representatives. But despite its campaign, the bills have now passed the House Judiciary and the House Rules Committees. They will be voted on this week.
The State Bar has been lobbying using mandatory dues. By doing so, members’ free speech and free association rights are necessarily implicated because they must fund the Bar’s activities regardless of whether or not they agree with what the Bar is doing with their money.
Under Keller v. State Bar of California, 496 U.S. 1 (1990) a mandatory membership bar association can use members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities. So how does the State Bar’s lobbying against voluntary bar legislation currently pending at the Arizona House of Representatives that has nothing to do with lawyer regulation or with improving the quality of legal services satisfy the criteria under Keller? It doesn’t.
The bills do not intrude on the authority of the state supreme court to regulate and discipline lawyers. As a matter of fact, the bills reaffirm lawyer regulation under the Arizona Supreme Court.
Instead, it’s our view that the Bar’s lobbying against House Bills 2219 and 2221 has everything to do with political and ideological activities and of course, with its own self-interest. The lobbying fails to pass Keller muster.
It also fails the “germaneness” analysis under Keller and its progeny, including Kingstad v. State Bar of Wis., 622 F.3d 708 and more recently Knox v. Service Employees Intern. Union, 132 S. Ct. 2277. A mandatory bar may constitutionally fund activities germane to the goals of regulating the legal profession and improving the quality of legal services out of the mandatory dues of all members. But the Court said, “It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.”
Indeed, in Knox, the U.S. high court further declared that “compulsory fees can be levied only insofar as they are a “necessary incident” of the larger regulatory purpose which justified the required association.” Knox v. Service Employees Intern. Union, 132 S. Ct. 2277 at 2289.
The State Bar of Arizona often relies on a key talking point when members object to its lobbying activities. The Bar claims it’s “Keller-pure.” But it’s only under a tortured enlargement of the aforementioned Keller criteria and its expansive interpretation under Article XIII of the State Bar of Arizona’s bylaws that such speciousness can be maintained. Article XIII outlines the Bar’s “Keller-pure” policy. Section 13.01 provides that the State Bar:
“Shall not, except as provided herein, use the dues of its members to fund activities of a political or ideological nature that are not reasonably related to:
1. (A) The regulation and discipline of attorneys;
2. (B) Matters relating to the improvement of the functioning of the justice system;
3. (C) Increasing the availability of legal services to the public;
4. (D) Regulation of attorney trust accounts;
5. (E) The education, ethics, competence, integrity and regulation of the legal profession; and
6. (F) Any other activity authorized by law.”
The bills do not involve regulation and discipline of attorneys. After all, 18 voluntary bars have for generations demonstrated that lawyers can be regulated and the public protected — without necessity of impinging free speech and free association rights. The bills do not relate to improving the functioning of the justice system; increasing the availability of legal services; regulating lawyer trust accounts or the education, ethics, competence or integrity of lawyers. Only under the last of the above enumerated criteria, “any other activity authorized by law” can the Bar with a straight-face say lobbying against voluntary bar legislation renders it Keller-pure.
Not only can you drive a dump trunk through that kind of broadly crafted interpretation — you can dump it, too.
Credits: Mercedes Benz Dump Truck, by SuperTank17 via creative commons attribution share-alike license at Wikimedia Commons; Dump Truck, by ozz13x via creative commons attribution license, Wikimedia Commons; Dump truck, public domain, Wikimedia Commons.