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Bar News - April 9, 2004 Mandatory Bar Membership Must End By: Mark P. Hodgdon THE BAR HAS orchestrated a massive campaign to convince us to support continued mandatory membership in the Association. Clearly, the Bar fears giving its members a choice since they are worried large numbers will not see the "value" to membership the Bar so earnestly proclaims. That’s all we’re talking about: the ability to choose. Nothing more. Why do our leaders so vehemently oppose giving their own members a choice? For an abject lesson in why forced change is necessary, look no further than this telling fact. The Bar does not intend to count the ballots unless the Supreme Court orders it to do so. Regardless of whether the vote is given effect, wouldn’t a truly viable organization want to know the feelings of its members on such a basic question? Our leaders should be demanding to hear their members’ voices, not shredding them. In the end, the argument for compulsory membership comes down to finances. The Bar won’t have as much lucre to support itself if members leave. Money alone is far too slender a reed to support such a mighty burden. As Justice Duncan noted: "Compulsion seems to me to be a doubtful expedient for the achievement of the lofty purposes prompting this petition, more especially since the compulsion relates only to finances. That it is so limited, suggests recognition of the futility of attempting to legislate self-improvement." In re Unification of the Bar, 109 N.H. 260, 269(1968). It is specious to argue that by paying our mandatory dues we are somehow better lawyers, more civic minded, or held in higher public esteem. There is simply no empirical or rational evidence to support such naked assertions. For large numbers of attorneys, the Bar is simply irrelevant at best and counterproductive, or even offensive, at worst. The Bar is far more interested in public relations and lobbying than serving its members. Indeed, the Bar itself asserts as the primary evil of voluntary membership that it will have to focus more on serving its members! Horrors! From the cries of the Bar, Western Civilization must be about to collapse. To the contrary, neighboring states have voluntary bars. And, while I am proud to be a New Hampshire lawyer, I don’t possess quite enough hubris to say our neighbors are any less public spirited or giving than we are. Certainly, their standing with the public could not possibly be worse than ours and legal services are not demonstrably less readily available. So, the Bar’s protestations of doom ring hollow. In the May 23, 2003, Bar News, Fred Upton opposed deunification on the premise, "If it ain’t broke, don’t fix it." The Bar testified before the Legislature that they thought that less than 40 percent of their members would voluntarily join. Sounds like the system isn’t just broke, it’s downright dilapidated. Our elections are routinely as competitive as the Kremlin’s, and just as likely to cause change. As usual, my ballot does not have a single contested race. Our exalted leader will again be the handpicked choice of the Board of Governors, years in advance no less. The last contested race for our leadership was more than a decade ago. Rampant apathy and disaffection are not signs of good health. Furthermore, our fixed costs to practice law have skyrocketed to where usually frugal New Hampshire is now among the five most expensive states in the country. My Maine fees are less than a third of my New Hampshire fees. Yet, I can discern no meaningful difference in the quality of the lawyers, judiciary or public esteem warranting this enormous gap in costs. Obviously, our leaders have little incentive to restrain costs, especially since our elections are meaningless and members can’t vote with their feet. The system is designed to perpetuate the status quo and does so magnificently. Yet, no issue generates more tension between the Bar and its rank and file than its lobbying activities. While the Bar leaders may not be partisan, they sure are political. The exceptions limiting the Bar’s lobbying activities are interpreted so broadly as to permit active promotion of positions on anything remotely affecting the judiciary or legal profession. The Court has shown disinterest towards reining the Bar in. One recent President announced upon his coronation that he was going to make lobbying the Legislature and media the focus of his term. He made good by using the Bar’s name to lobby for anything that popped into his head, including; the approval of specific judicial nominees, the payment of the Supreme Court Justices’ legal fees from the impeachment, increases in the judicial budget, and even tort reform benefiting his own clients. He reacted to every mention of alternatives to judicial lifetime appointments like a vampire to the crucifix. Now, I don’t personally disagree with all these positions. The point is that these are legitimate political matters with lawyers on all sides and certainly he had no mandate to use the presidency as a personal soapbox. In dissenting against the unified bar, Justice Grimes wrote, "Many lawyers find this compulsory membership offensive and the effect upon their personal liberty is not diminished because the causes are ‘confined to issues related to the particular interests and competence of lawyers.’ These issues can and do engender as deep feelings as any other." In Re Unified Bar, 112 N.H. 204, 207 (1972). He’s clearly right. I resent the implication that because I am a lawyer, I must automatically be an unfettered supporter of everything judicial. I chose to become an officer "of the court" not "for the court". I reserve the right to question, think and ponder issues in larger contexts than what is good merely for lawyers or the judiciary. Mandatory membership diminishes that right. Mark P. Hodgdon is an attorney in Epsom.
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