Bar Journal - December 1, 2002
Where Have We Been - The Case for a Voluntary & Independent Bar in NH
By: Attorney Vincent A. Wenners, Jr.
Bruce Felmly's article, published in the June, 2001 edition of The New Hampshire Bar Journal, claimed to set out the arguments pro and con which are commonly raised with respect to the unified bar. I respectfully submit that the arguments in favor of a voluntary bar require further amplification.
The New Hampshire Supreme Court made membership in the New Hampshire Bar Association mandatory for all lawyers in 1968. A mandatory (or integrated) bar was created primarily to allow the Bar Association to oversee lawyers' professional conduct and impose discipline. Nevertheless, from 1968 until today, the Bar Association has played essentially no role whatsoever in this process. Instead, it is the Supreme Court itself which has had exclusive oversight of lawyers' professional conduct and discipline.
The Supreme Court established the integrated bar in the state of New Hampshire by adopting Supreme Court Rule 42A, which requires that all lawyers in the state pay dues to and remain members of the Bar Association as a precondition to their right to practice law. Whether the Supreme Court retains the authority to discipline lawyers, or whether it is replaced by the Legislature, there is no basis for mandatory membership in the Bar Association. Accordingly, it is proposed that Rule 42A be repealed by the Supreme Court and that voluntary membership in the New Hampshire Bar Association be restored.
I. THE HISTORY OF THE INTEGRATION OF THE BAR IN NEW HAMPSHIRE
Since the 1800s, the Legislature has asserted jurisdiction over the licensure and regulation of various occupations and professions. See RSA Title XXX. Law is one of those professions. However, unlike all other professions, which are regulated by administrative agencies in the Executive Branch, the process of and qualifications for licensure of lawyers has been delegated by the Legislature to the Supreme Court. RSA 311:2. The Supreme Court, in turn, has delegated its responsibility in this area to the Board of Bar Examiners and the Committee on Character and Fitness, both of which it appoints. See Supreme Court Rule 42. Similarly, the Legislature has also delegated matters relating to the disbarment or other discipline of lawyers to the Supreme Court. RSA 311:8. Again, the Court has created the Professional Conduct Committee, an entity which it controls, to perform this function. See Supreme Court Rule 37.
Prior to 1968, lawyers in New Hampshire could choose to belong or not to belong to the New Hampshire Bar Association. In that year, however, the members of the Association voted, 231 in favor and 188 against, for a unified bar and petitioned the Supreme Court to establish the same. The Court found that the purposes which the petition sought to accomplish, and the reasons for the proposed constitution of a unified bar, were (1) to improve the administration of justice; (2) to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law; (3) to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform; (4) and to carry on a continuing program of legal research and education. In re Unification of the New Hampshire Bar, 109 N.H. 260 (1968), at 264-265.
The Court held that unification of the bar of this state is a matter which is within its jurisdiction and which can best be considered and resolved by it, citing Ricker's Petition, 66 N.H. 207, 210 (1889) for the proposition that the "authority to make reasonable rules for the admission and removal of members of the bar 'is necessarily inherent in every court, in order to enable it to discharge its duties, as much so as the power to preserve order [and that] 'The constitution * * * vests in the courts all the judicial power of the state. The constitutional establishment of such courts appears to carry with it the power to establish a bar to practice in them." The Court also cited RSA 490:4 as vesting it with the general superintendence of all our courts. Finally, the Court referred to Bryant's Case, 24 N.H. 149, 158, Harrington's Case, 100 N.H. 243, Broderick's Case, 106 N.H. 562, and Donovan's Case, 108 N.H. 263, 264, as additional precedent for its authority to regulate the practice of law.
The Court noted that in the 29 states and 2 territories then having such bars, unification was accomplished either entirely by the legislature (Alaska), entirely by court order (Florida and Georgia) or by a combination of legislative and judicial action (Wisconsin). The Court further observed that the power of a state's or a territory's supreme court to integrate its bar without any specific statutory authorization or direction to do so had been upheld in every jurisdiction where the issue had been raised, citing In re Integration of Bar of Hawaii, 432 P.2d 887 (1967); Petition of Florida State Bar Ass'n, 40 So.2d 902; In re Integration of Nebraska St. Bar Ass'n., 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151; Integration of the Bar Case, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; Annots., 114 A.L.R. 161; 151 A.L.R. 617; 21 A.B.A.J. 635.
Accordingly, the Court granted the petition and established a unified bar for a trial period of three years.
In 1972, at the end of the trial period, only 41 percent of the active membership of the New Hampshire Bar Association voted on the question: "Should the New Hampshire Supreme Court be requested to enter an order making unification permanent?". Again, the vote was close: 199 in favor and 150 in opposition. Nevertheless, the Supreme Court ordered that unification "now be continued" on the grounds that "substantial advances" had been made. In re Unified New Hampshire Bar, 112 N.H. 204 (1972).
The Court had implemented its order in 1968 by the simple expedient of temporarily adopting Rule 42A. The Court's decision in 1972 made Rule 42A permanent. New Hampshire Supreme Court Rule 42A provides as follows:
ARULE 42A. NON-PAYMENT OF BAR DUES
Whenever the bar membership of a person admitted to the bar of this State shall have been suspended for non-payment of dues under the Constitution and By-Laws of the New Hampshire Bar Association and not have been reinstated within six (6) months, an order shall be issued suspending that person from the practice of law in this State. Reinstatement thereafter shall be only by order, upon petition to this court following reinstatement to membership in the Bar Association in accordance with the provisions of said Constitution and By- Laws."
II. THE DISSENTS OF JUSTICES LAMPRON AND GRIMES
The New Hampshire Bar was not the only body that was sharply divided over whether or not to make its membership mandatory. The Supreme Court's 1968 decision to try out the concept of a unified bar was itself the product of a split vote. Justices Lampron and Grimes dissented from the Court's decision on the grounds that unification was a violation of the First Amendment; that financial compulsion was not necessary to the regulation of professional qualifications and conduct; that every lawyer who practiced in New Hampshire already had to meet the qualifications set by the Supreme Court in order to practice, regardless of whether or not he or she was a member of the Association; and that each lawyer who practiced in New Hampshire was already subject to the disciplinary jurisdiction and procedures of the Court. In re Unification of the New Hampshire Bar, 109 N.H. 260, 269.
Justice Duncan expressed doubt that compulsion was a sufficient expedient to achieve the lofty purposes which had prompted the Bar Association's petition requesting unification. He wrote that it was not feasible to attempt to legislate self-improvement and he was not satisfied that public necessity demanded the radical measure of unification. He noted that the same goals might be established by a continued voluntary bar and, if more stringent disciplinary methods were required, they could be provided by the Supreme Court without assessing dues under the penalty of disbarment. Id, at 269.
Justice Grimes wrote that so long as the personal freedom of even one lawyer was curtailed on the basis that it was supposedly necessary for the public good, necessity should be established by demonstrating that less drastic means, i.e. a voluntary bar, would not suffice. Noting that the Court has the power to protect the public by imposing requirements with respect to qualifications and professional conduct, Justice Grimes argued that the Court could impose those standards and that it could require lawyers to contribute to the expenses of enforcement, without requiring compulsory membership in and the payment of dues to an association which might take positions on controversial legislation. Id., at 269.
Justice Grimes also dissented from the Court's 1972 decision, which made unification permanent, on the grounds that there were "no improvements that can be shown to have resulted from unification." In Judge Grimes' view, any "advances" could have been attained equally well by a voluntary bar. In re Unified New Hampshire Bar, id., at 207.
III. DESPITE A FLURRY OF EARLY POPULARITY, THE INTEGRATED BAR HAS BEEN REPLACED BY THE COURT AS THE AGENCY OF CHOICE TO DISCIPLINE LAWYERS
The concept that a unified or compulsory bar association is necessary in order to assure the professional qualifications and conduct of lawyers is relatively new. It was born of the reform movement of the earlier part of the twentieth century. The concept replaced the historic power of the courts to fulfill those obligations. The discipline of lawyers by individual judges gave way, at least by the early 20th century, to the establishment of unified bar associations which controlled lawyer discipline.
The New York City Bar was the first local bar concerned with the control of professional qualifications and discipline. Roscoe Pound, The Lawyer from Antiquity to Modern Times 185, 249 (1953). By 1910, the American Bar Association's Canons of Legal Ethics had been adopted by 23 state bar associations. M. Louise Rutherford, The Influence of the American Bar Association on Public Opinion and Legislation, p. 89 (1937). In 1914, the American Judicature Society, a reform organization dedicated to improving the qualifications and discipline of lawyers, and led by Herbert Harley, published a model act for the "integration" of state bar associations. Glenn R. Winters, Bar Association Organization and Activities: A Handbook for Bar Association Officers, 5 (1954). By the mid-1900s, 25 states had bar associations which either controlled or had substantial input into lawyers' qualifications and discipline. Winters, id., at 6.
The ability of the profession to police itself, however, was inadequate to meet the demands of the public. By the mid-1960s, the public and the profession had turned back to the courts to reestablish judicial control of the legal profession. Commentator Mary Devlin has documented the collapse of the legal profession's attempts at self-policing in her comprehensive 1994 article on lawyer discipline published in the Georgetown Journal of Legal Ethics:
"In 1970, a bombshell fell upon the profession. The ABA's Special Committee on Evaluation of Disciplinary Enforcement, chaired by former U.S. Supreme Court Justice Tom Clark (the Clark Committee) reported that:
After three years of studying lawyer discipline throughout this country, . . . [they had discovered] the existence of a scandalous situation that require[d] the immediate attention of the profession. With few exceptions, the prevailing attitude of lawyers toward disciplinary enforcement range[d] from apathy to outright hostility. Disciplinary action [was] practically nonexistent in many jurisdictions; practices and procedures [were] antiquated; [and] many disciplinary agencies ha[d] little power to take effective steps against malefactors.
The committee emphasized that "public dissatisfaction with the bar and the courts [was] much more intense than [was] generally believed within the profession" and warned that "unless public dissatisfaction with existing disciplinary procedures was heeded and concrete action was taken to remedy the defects, the public soon would insist on taking matters into its own hands." The Clark Committee warned that this might take the form of "public participation in the disciplinary process." In the face of external threats to self regulation of the profession, the Clark Committee strongly recommended assertion or reassertion of the judiciary's inherent power to supervise the disciplinary process in the face of any intervention by the legislature.
The Clark Committee's most lasting legacy, however, is its consideration of the profession's failed attempt at self policing through the use of volunteer lawyers' investigating and prosecuting complaints. The committee identified several problems resulting from the decentralized disciplinary structures of bar associations, including reluctance of members of a local legal community to discipline each other, lack of uniformity in decisions, and lack of initiative. Dissatisfaction with the disciplinary procedures of the bar associations led the Clark Committee to call for the professionalization of lawyer disciplinary enforcement.
Lawyer disciplinary agencies are directly or indirectly part of the judicial branch of government. The practice of law is regulated by the highest court of every state and the District of Columbia. This is in contrast to other professions and occupations that are typically regulated by agencies within the executive branch of state government. In thirty three jurisdictions a lawyer must belong to the bar in order to practice law. In eleven unified bar jurisdictions, the lawyer disciplinary agency is separate from the bar. In the other eighteen states, an agency of the state's highest court regulates the practice of law, and lawyers pay an annual registration fee to this agency. They need not belong to the bar association in order to practice law.
Judicial branch authority over a lawyer disciplinary system with public members assures that protection of the public is the primary purpose. Direct involvement of the state's highest court should also foster another frequently recognized purpose of lawyer discipline: promotion of public confidence in the judicial system. Non lawyer participation provides assurance to the public that the disciplinary system is serving its interests, rather than those of individual lawyers. While lawyer members of disciplinary agencies may be more sensitive to the nuances of technical violations of the rules of professional conduct, they frequently mention the common sense approach of their non lawyer counterparts." Mary M. Devlin, Symposium, Historical Overview, The Development of Lawyer Disciplinary Procedures in the United States, 7 Geo. J. Legal Ethics 911, (Spring, 1994).
The New Hampshire Supreme Court has implemented nearly all of the recommendations of the Clark and McKay Commissions. Our Court, therefore, was apparently quite cognizant in 1968 and 1972 of the inadequacies of a bar association to act as an effective vehicle for attorney discipline. Peculiarly, however, despite the fact that the Court explicitly acknowledged that it had the responsibility and the authority to oversee the professional qualifications and conduct of lawyers, it nevertheless approved an integrated bar. Even with the benefit of hindsight, it is difficult to comprehend the Court's original logic.
The Supreme Court confirmed its conditional 1968 ruling in 1972 and ruled that the integration of the bar was to be permanent, The Court concluded that in the three years subsequent to the 1968 conditional approval "substantial advances" had been made. As Justice Grimes pointed out, however, there was no empirical evidence to support such a finding. The Court noted improvements in "professional competence, discipline and ethics." Those improvements were clearly due to actions of the Court, however, and not to the unification of the bar.
Moreover, in the years since 1968 and 1972, the Court has adopted increasingly stringent disciplinary procedures and ethical standards and imposed substantially stricter qualifications upon the practice of law. Again, there is no evidence that compelled membership in the Bar Association has contributed in any material way to the promulgation of these higher standards of practice - or that a voluntary bar would not have done the job equally as well or even better.
In summary, the existence of an integrated bar cannot be justified on the basis that compulsory membership is required to assure high professional qualifications and the good conduct of lawyers. Consequently, if an integrated bar is to continue, there must be some other compelling rationale.
V. THERE IS NO COMPELLING RATIONALE TO SUPPORT THE CONTINUANCE OF AN INTEGRATED BAR IN NEW HAMPSHIRE
In 1968, the New Hampshire Supreme Court advanced several reasons other than the oversight of professional qualifications and conduct in support of its decision to integrate the bar association and make membership compulsory. In re Unification of the New Hampshire Bar, supra. The Court's stated reasons, and a commentary on each, follow.
- In 1967, only one third of the members of the voluntary New Hampshire Bar Association attended most meetings and 88 members had not even paid their dues. In Wisconsin, a state with a unified bar, active participation in bar activities far surpassed that of the voluntary bar. Further, compulsory membership will produce a "profession consciousness" in order to earn a "client's trust and confidence". Id., at 264-265.
Today, after more than 30 years of bar unification, the percentage of members attending most bar meetings is far less than the one-third who participated in the voluntary bar of 1967. Further, it is unlikely that lawyers today have a greater "profession consciousness" than those in 1967; at least there is no empirical evidence to suggest that the lawyers of 1967 were less "professional" than those of 2001. Finally, the Court's reliance on the experience of the State of Wisconsin is suspect, as is discussed below in section VII.
- A unified bar will insure the finances and personnel to support continuing legal education, which are inadequate under a voluntary bar association. Id., at 265.
The Court has the inherent power to impose requirements for continuing legal education on all lawyers in the state and it has in fact aggressively exercised that power. Although the Bar Association's admirable continuing legal education program has been the main provider of CLE services, there is no reason to believe that a voluntary bar would discontinue that program; it is, after all, a revenue-generator. In any case, even if it did, there are today numerous competing for-profit and not-for-profit entities that offer continuing legal education services that are at least as good as those offered by the Bar Association.
- A unified bar will have the finances and personnel necessary to "ferret out and effectively stop the unauthorized practice of law". Id., at 265.
The prevention of the unauthorized practice of law is committed by statute to the Attorney General. RSA 311:7-a. Further, there is little, if any, evidence that the unified bar has ferreted out and stopped any significant unauthorized practice from 1968 to date. (The recent effort of the Association to stop Theo Kamasinski is an exception, but presently no more than a work in progress).
- Unification will eliminate the difficulty in mobilizing the bar as a whole to take a united public position on matters affecting the administration of justice and the practice of law. Id., at 265-266.
As discussed in detail below in section VI, the bar's ability to speak publicly with a united voice is severely circumscribed by the mandate of Petition of William L. Chapman, 128 N.H. 24 (1986). The organized bar has the ability to speak publicly, but any vigorous statement is likely to be met with an equally vigorous dissent by individual members of the bar. Even if all members of the bar were thoroughly consulted on all matters of interest - which does not appear to be the case at present - there will probably be dissenting members whose rights may be abridged by requiring membership in an association which includes other lawyers with whose views they disagree with respect to matters proscribed by Chapman.
- In 1972, the Court attempted to justify making the bar's temporary integration permanent on the grounds that there was a greater participation by "younger members of the bar in the government and activities of the association" than before and an increase in the "the swelling numbers of younger attorneys [who] have become members immediately upon their admission to practice". The increased membership was, of course, attributable to the unified bar only because all lawyers were required to become members immediately upon their admission to practice. Increased compulsory membership cannot justify the bar's integration; it may only demonstrate the results of the compulsion. A voluntary bar may also have shown substantial increases in membership as the numbers of lawyers admitted to practice Aswelled, but there was no opportunity to make the comparison.
In any case, improved membership, finances and administration of the Bar Association are not legitimate reasons to compel membership. Individual freedom of lawyers to associate or not as they choose should not be abridged simply to create a bar association with greater participation, more money, or a bigger and better administrative staff.
VI. FIRST AMENDMENT CONSTRAINTS ON A COMPULSORY BAR.
New Hampshire does generally require the payment of an annual licensing fee by those practicing a regulated profession or occupation. RSA Title XXX. Forced membership in a trade or professional association, however, is unknown outside the bar. No other profession is organized, or has ever seriously considered organizing itself, along similar lines. Theodore J. Schneyer, The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case, Am. B. Found. Res. J. 1 (1983). Doctors are not required to join their medical society. Likewise, certified public accountants, veterinarians, and architects are free to join, or to refrain from joining, their respective professional organizations. A unified bar is a system of organization unique to lawyers.
As noted above, the New Hampshire Supreme Court gave as one of its reasons to unify the bar that this would better mobilize its members to take a united public position on matters of common concern. In fact, the opposite has occurred; the unified bar hamstrings the profession's legitimate participation in public policy debates. Far from "unifying" the profession, forced membership in the Association is itself a divisive issue.
In Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L. Ed..2d 1191 (1998), a Wisconsin attorney argued that his compelled membership in and financial support of the State Bar of Wisconsin, which engaged in various political and legislative activities with which he disagreed, violated his free speech rights under the First Amendment. Writing for the four-justice plurality, Justice Brennan found that although certain political and legislative activities of such an organization might violate the First Amendment rights of its members, compulsory bar membership by itself was not unconstitutional. Moreover, since Lathrop had not specifically identified any particular political or legislative activities which he claimed violated his rights, the plurality expressly reserved its judgment for a later case on the question of what to do in the case of a concrete First Amendment violation.
Our own Supreme Court dealt with that issue in the 1986 case of the Petition of William L. Chapman, supra. Acting in his own behalf, Attorney William Chapman had requested the Supreme Court to enjoin the New Hampshire Bar Association from continuing to oppose so-called "tort reform" legislation then pending before the Legislature. The Court noted that there was a wide range of potential issues which might attract the interest of the bar. The Court found that at one end of this spectrum were purely private partisan issues, upon which the Association was not permitted to take a position. For example, the Association could not take an official position on a bill to repeal the so-called "anti-CWIP" law. At the other end of the spectrum were matters which clearly affect access of the public to the courts through the legal profession, such as proposed limitations on contingent fees, upon which the Court found the Association may legitimately take a collective position.
The Court acknowledged that the ends of the spectrum are more easily defined than the point within it which separates legitimate from illegitimate lobbying activity. Nevertheless, since "fairness to [the] Board [of Governors of the Bar Association] requires that it be given more specific guidance in the area of what legislative activities before the General Court are permissible, [the Court chose] to take this opportunity to promulgate clearer guidelines in this area." Chapman, id., at 15. Accordingly, the Court held that "the Association should limit its activities before the General Court to those matters which are related directly to the efficient administration of the judicial system; the composition and operation of the courts; and the education, ethics, competence, integrity and regulation, as a body, of the legal profession". Id., at 16. In general, the Court admonished the Association to avoid the gray areas. "Where it can reasonably be argued that an issue is outside the scope of its authority, the Board should take no position on the matter. Moreover, where substantial unanimity does not exist or is not known to exist within the bar as a whole, particularly with regard to issues affecting members' economic self-interest, the Board should exercise caution.". Id., at 17.
The net result of Chapman is that our Court did permit the Bar Association to engage in some political activities which some of its members might find objectionable. But does this mean that the dissenting members could be required to pay dues to support such activities? Lathrop had left open the question of the extent to which a unified bar could use compelled dues to advance its positions. Several years later, in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 57 L.Ed.2d 261 (1977), the Court gave one answer to this question. The Court in that case found that the First Amendment rights of the members of a public labor union could be protected by allowing those employees compelled to pay union dues to deduct the portion that supported any objectionable lobbying activities. Although Abood did not involve a bar association, the handwriting was on the wall.
Finally, in Keller v. State Bar of California, 491 U.S. 1, 1102 L.Ed 2d 1 (1990), members of the unified State Bar of California argued that use of their mandatory membership dues to finance ideological and political activities which they opposed violated their First Amendment rights. Among the bar association's activities the plaintiffs challenged were (1) lobbying for or against legislation 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; (2) requesting Congress to refrain from enacting a guest worker program for alien labor; (3) filing amicus curiae briefs in cases involving the constitutionality of a victim's bill of rights; disqualifying a law firm from a case concerning the power of a workers' compensation board to discipline attorneys; and (4) adopting resolutions on issues such as gun control, a nuclear weapons freeze, and federal court jurisdiction over abortion, public school prayer, and busing for school integration.
The Court analogized the unified bar to a public employees' labor union and held that mandatory dues could not be used for activities not "germane" to the purpose for which compelled association was justified. The Court found that compelled association was 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 mandatory dues be used to fund them. Like our Court in Chapman, the Supreme Court admitted that the line between permissible and impermissible political activities would be murky, but it claimed that "the extreme ends of the spectrum are clear." Thus, mandatory dues could not be spent lobbying on issues such as gun control or a nuclear weapons freeze, but they could be spent for activities connected with attorney discipline and ethical codes.
On the other hand, the Court also held that a unified bar association would have to develop specific safeguards to guarantee that it would not spend mandatory dues income on impermissible activities. In order to develop mechanisms which would allow dissenting members to deduct amounts spent upon "Anon-germane" activities from their dues, unified bars necessarily had to avoid that big fuzzy zone between the clearly permissible and the clearly impermissible. The end result of Keller, therefore, was to provide unification opponents with the tools needed to render a unified bar unworkable at an acceptable cost. This result first became clear in the State Bar of Michigan in 1992:
"After Keller, unified state bar associations began to develop procedures by which members could claim dues deductions for Keller prohibited lobbying. The State Bar of Michigan, fresh off a major legal battle of its own over its constitutional status, filed an amicus brief supporting the State Bar of California in Keller. After Keller, the Michigan Bar became one of the first unified bar associations to implement a system for dues deductions, and to make members aware of this deduction option. Thereafter, so many lawyers in Michigan deducted the portion of their dues attributable to Keller-prohibited lobbying that the bar association saw no alternative but an alternative bar, as then existed in 19 other states. The State of Florida adopted an alternative: it declined to participate in any prohibited Keller lobbying.
In the end, "an overwhelming majority" of the Michigan State Bar Representative Assembly approved the proposal to abandon any Keller lobbying and to seek an order from the Michigan Supreme Court essentially identical to that obtained by the Florida Bar, specifically prohibiting the State Bar of Michigan from engaging in Keller prohibited lobbying. On July 30, 1993, the Michigan Supreme Court issued the requested order, and the state Bar embarked on a new era of limited legislative activity and, it hoped, peace with its dissenting members." Bradley A. Smith, The Limits of Compulsory Professionalism: How the Unified Bar Harms the Legal Profession, 22 Fla. St. U. L. Rev. 35, Summer, 1994.
In essence, Michigan and Florida have adopted "the Chapman solution" to the constitutional problem: to avoid violating the First Amendment rights of its members, an integrated bar must limit its lobbying activities to "proper" areas and/or to subjects upon which all the members agree. Thus Michigan, Florida and New Hampshire claim to have resolved the administrative difficulties posed by Keller and to have eliminated confrontation over the legal and ideological divisions within their bar associations. On closer inspection, however, the solution has not only stripped these state bars of their ability to undertake many activities performed by voluntary bars in other states, but it has also failed to resolve the constitutional issues which are inherent in the very concept of a unified bar.
The first problem with the solution is that it fails to buy peace among the members of a bar association and, thus, it does not allow the association to speak with one voice on matters of common interest . Florida, Michigan and New Hampshire limit the bar's legislative activities to those "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 efficacy 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. Falk v. State Bar of Michigan, 411 Mich. 63, 305 N.W.2d 201 (1981).
The fact that an issue is arguably related to one of these permissible areas of activity does not respond to the complaints of dissenting members that they are being forced to subsidize ideologies they oppose. The problem is that none of these terms are self defining. Accordingly, dissenting members still may still challenge the bar's activities as going beyond the permissible scope of lobbying activity. Any assumption that the number of challenges will be small may be erroneous, and could depend on many factors. The most important factors affecting the number of challenges are the extent to which unified bar associations refrain from taking political or legislative positions, and the determination of dissenting members to stand their ground and demand dues rebates.
It is submitted that our Court's Chapman decision exemplifies this situation. The Court held in Chapman that positions are properly taken if they fall within the category of "matters which are related to the efficient administration of the judicial system; the composition and operation of the courts; the education, ethics, competence, integrity and regulation, as a body, of the legal profession". This standard is far too broad, if indeed any standard may be drawn which adequately protects the constitutional rights of all members. For example, the Court held that the Association could take a position on a proposed legislative limitation of contingent fees "which clearly affects access of the public to the courts through the legal profession." Even this issue, however, is not one upon which there is any substantial agreement among the members of the New Hampshire Bar. For example, there are members of the Association on both sides of the questions of whether or not repeal RSA 508:4-c, which requires that contingent fee agreements be filed with the Clerks of Superior Court, and whether or not to challenge the administrative position of the Labor Department which "caps" contingent fees at 20 percent.
Similarly, the Bar Association is permitted by Chapman to lobby for improvements in the quality of the bench and the administration of the courts. At the last session of the Legislature, an unprecedented number of bills dealing with the Judiciary were offered. Next session will assuredly see the same thing. . Most of these bills arguably fit within the scope of the lobbying activities which are permitted by the Chapman case. Nevertheless, the members of the New Hampshire Bar are definitely not of one mind with respect to these bills.
An even better example is CACR5, the recently defeated constitutional amendment which proposed to give the legislature power over the regulation of court rules of procedure and evidence. As evidenced by articles in favor of the proposal by individual members of the Board and the Bench in the New Hampshire Bar Journal, the New Hampshire Bar News and local newspapers, it is unlikely that "substantial unanimity" existed within the Bar in support of the Board of Governors' position against this measure.
Even the opening for providing the legislature with "content neutral" advice on legislation provides no safe harbor for bar lobbying. This task is more complicated than it first appears. Any conclusion on the merits of legislation, for example, would be prohibited. Even a supposedly neutral listing of the "advantages" and "disadvantages" of legislation may be challenged by members who view the Bar's analysis as one-sided. In the end, the Bar is able to do little more than point out technical errors in draftsmanship. (Moreover, in light of the services offered by New Hampshire's Office of Legislative Services, it is doubtful that this exception is even relevant.)
Ironically, however, the real problem with the Chapman solution is not that it failed to place enough limits upon the Bar Association's political activities, but that it placed too many restraints upon them. The Court stated that the Association must exercise "circumspection", seek out a "substantial majority", and use "caution especially regarding matters affecting the members economic self interest". Many lawyers do not want circumspection, caution and a substantial majority. Those lawyers want to speak out vigorously and collectively on matters which seem right and just, regardless of whether or not a clear majority supports their position, and regardless of whether or not the matter falls within the confining rubric of the Chapman case. Unless membership in the Bar Association is voluntary, no such strong and vigorous advocacy is legally permissible.
The process of coordinating the roles of the separate branches of government in America was once the domain of the common law, the workplace of lawyers and judges. Today that legal process is largely legislative and administrative. Lawyers look for the law in statutes, state agency regulations and the Code of Federal Regulations. Thus, debates over what should be the law are now increasingly carried on within the legislative and the executive branches, and less so by lawyers arguing to a common law court. The cost to the unified bar of gaining the rather illusory advantages offered by Chapman is the unified bar's abandonment of much of the legislative and administrative field on which lawyers in voluntary bar states remain eligible to play.
No matter how much the legislative program of the unified bar is reduced in scope, it is hard to imagine any issue which might not be challenged by dissenting members of a bar with mandatory dues as being an impermissible subject for lobbying. A unified bar adopting the Chapman solution thus speaks out on far fewer issues, avoiding even relatively innocuous issues on which it would seem to have obvious technical expertise. This self imposed censorship is not beneficial to the bar or to the public.
VII. FLORIDA, WISCONSIN AND ALASKA.
The New Hampshire Supreme Court cited Petition of Florida State Bar Ass'n, 40 So.2d 902 (Florida, 1949); In re Integration of the Bar, 244 Wis. 8, 11 N.W. 2d 699, 151 A.L.R. 586 (1955); and Ala. Laws, 1923, No. 133, as authority for its decisions in In re Unified New Hampshire Bar and In re Unification of the New Hampshire Bar. In none of the three states relied upon has the integrated bar been a success.
A. The Florida Experience
The experience of the Florida state bar has been discussed above. The Florida bar found that the mandates of Keller so limited its ability to engage in legislative activities and was the cause of so much dissent among its members that it terminated all proscribed activity rather than engaging in a dues deduction program
B. The Wisconsin Experience
After many years as a unified bar, Wisconsin, pursuant to a 1988 United States District Court ruling, dropped its mandatory bar membership requirement. For four years, the Wisconsin bar functioned as a voluntary association. Keller, which affirmed the constitutionality of a unified bar - so long as mandatory dues were not expended for political activities unrelated to the administration of justice and the legal profession - opened the way for reunification. After Keller, the Wisconsin Supreme Court, which had upheld the unified bar against frequent challenges before the 1988 federal court ruling, again conditioned the practice of law on membership in the State Bar of Wisconsin.
No formal survey or vote was taken of Wisconsin lawyers. In fact, many observers believe that a majority of Wisconsin lawyers, especially younger lawyers, opposed reunification. Consequently, although the request for the reunification order came from the State Bar, there was no reason to conclude that a voluntary bar had been a failure in Wisconsin. During four years of voluntary operation, Wisconsin's bar membership remained very high, in excess of 80%. The bar moved much more aggressively into the provision of CLE programs than it had in the past, reduced its reliance on dues income, and remained financially sound. There was no reported increase in disciplinary actions or ethical violations. John Walsh, Looking to the Future, Wis. B. Bull., 57 ( Dec., 1988).
In summary, the Wisconsin experience, though often misrepresented as proof of the superiority of a unified bar, in fact shows just the opposite the Wisconsin State Bar carried on quite successfully for four years as a voluntary organization. Patricia Heim and Gerald J. Thain, Voluntary Bar vs. Mandatory Bar: The Debate Heats Up: The Case for a Voluntary Bar, 64 Wis. Law. 10 (1991).
C. The Alaska Experience
The development of the Alaska Bar Association demonstrates the political dangers inherent in an integrated bar. The bar in Alaska had long been a voluntary "gentlemen's" social club. As statehood approached, a popular lawyer was "prosecuted" before the territory's only federal district court judge for unprofessional conduct (an alleged excessive fee). The case demonstrated how little power lawyers had in the territorial legal system. They were forced to have both their cases and their professional conduct decided by a single judge they did not respect. The members of the bar considered the matter to be unfair and were galvanized into action. Since more than half the territorial legislature was composed of lawyers, the bar used that forum as its avenue of relief and passed an act integrating the Alaska bar.
Not long after, Alaska became a state and created its own judicial system. The new state supreme court and its chief justice were a reform-minded lot. Among other things, a reinvigorated judiciary asserted its "inherent and final power and authority to determine the standards for admission to the practice of law and to punish or disbar lawyers". Acting pursuant to this authority, the chief justice published disciplinary rules. This time the bar revolted against its own supreme court; the bar's board of governors indicated they would not consider the rules binding.
The chief justice determined that the bar had no effective governing body and ordered the association's assets and records seized in order that the court could oversee the bar's administrative duties. The chief justice also adopted a rule calling for the posting of a $30 bond in order to obtain a jury trial and proposed another rule requiring that copies of all contingent fee agreements be filed with the trial court. These rules infuriated plaintiffs' lawyers.
The end result was that the bar association instituted suit against the Alaska's supreme court in the United States District Court. Nearly every member of the bar paid a special assessment to fight the case and most lent their names to the case title. After some preliminary skirmishing, the federal court signaled its view that the fact that the bar had been integrated by legislation made judicial control over the bar suspect. Soon thereafter, the matter was settled. Among the elements of the settlement were the abridgement of the rule-making authority of the court and the institution of a system which rotated the chief justice position among all of the justices. Pamela Cravez, A Revolt in the Ranks: the Great Alaska Court-Bar Fight, 13 Alaska L. Rev. 1 (June, 1996).
VIII. A VOLUNTARY BAR IS PREFERABLE TO A COMPULSORY BAR
The advantages of compulsory membership in a state bar are more rhetorical than real. When we compare the track record of the unified bar to the arguments made on its behalf, both during the heyday of the unification movement in the early 1900s and at the present, unification appears to be a rather dismal failure.
Traditionally, unified bar supporters have argued that a unified bar has significant programmatic advantages over a voluntary organization, i.e. that 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 and the public. Actual experience has never supported this argument.
Coerced membership should not be expected to result in added participation by its members. Lawyers who do not wish to give their time to the bar are unlikely to do so because they are forced to join. Unless the courts are willing not only to force lawyers to belong to the bar, but also to require their participation in bar functions and programs, increased participation is unlikely.
The argument might be made that those members who participate in bar programs will have greater financial resources at their disposal on account of the mandatory dues paid by all members. The underlying assumption of predicted financial difficulties for a voluntary bar is that membership in a voluntary bar would decline, and that the bar would be unable to replace the lost income. Actual experience is to the contrary. Voluntary bar associations have developed other sources of income which have allowed them to reduce their reliance on dues income to a figure well below that of the typical unified bar association. Similarly, voluntary bars, through member benefit programs, have generally been able to maintain membership rates in excess of 70% of the state's lawyers, with some having membership greater than 90%. Smith, supra, at 129 - 132.
Schneyer demonstrated that voluntary bar associations are actually better able than unified bars to raise money, and usually have a higher level of per member funding than mandatory bar states. Schneyer hypothesized that the superior fundraising ability of voluntary bar associations might be the result of a resistance to dues increases in unified bars by those members who would prefer not to be members of the unified bar at all. It may also be caused by the different nature of the dues payment. Where dues are mandatory, lawyers may view the bar as a taxing authority, to which the less paid the better. Lawyers, generally an individualistic lot, may be more willing to support an increase in fees to their voluntary 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.
Even if the addition of involuntary dues income increases the resources available to a unified bar, there is no evidence that these resources translate into added benefits for either the public or bar association members. Schneyer, id., at 14, 15. Alleged public benefits accruing from a unified bar take the form of better consumer protection and regulatory innovation, improved delivery of legal services, including pro bono work, and better lawyer discipline. In fact, the unified bar has been a disappointment in achieving any of these ends.
Schneyer, for example, found that states with unified bar associations have been slower than voluntary bar states to adopt regulatory programs beneficial to consumers, such as client security funds. Schneyer, id., at 100. Similarly, the country's first mandatory continuing legal education program was adopted in 1974 by Minnesota, a voluntary bar state. Schneyer, id., at 99.
Unified bars likewise have not demonstrated an edge over voluntary bars in increasing the availability of legal services to the poor. Schneyer, id., at 101-103. There is simply no credible evidence that pro bono legal services for the indigent are more readily available in a state with a mandatory bar than in voluntary bar states. As noted above, the compulsory dues in a unified bar may make members view their dues as a tax, relieving them in some way of their pro bono responsibilities. Thus, a unified bar may actually stifle pro bono activity.
Finally, attorney discipline can hardly serve as a justification for the unified bar today. Experience has shown that the state can directly assume any role played by a unified bar association with positive results.
Keller and Chapman have created significant management problems for unified bars and may have made effective legislative activity impossible. Proponents of bar unification may argue that these administrative difficulties are offset by the economic and social benefits of unification to lawyers. Such alleged benefits include insurance, discounts on both personal and professional products and services, the inculcation of professional values, and greater diversity in membership and opinion. Such private benefits are not usually considered a sufficient basis to invoke the coercive power of the state to force individuals to join an organization. However, even if they were, it is not clear why coercion is necessary. Material private benefits such as insurance, credit cards, car rental discounts, and other financial savings are indeed a common feature of voluntary associations. Schneyer, id., at 98. Indeed, voluntary associations may be more likely to offer such benefits to attract members. For example, many voluntary bars such as the American Bar Association offer access to insurance, discounts, continuing legal education programs, a periodic magazine type publication, an active legislative program, a mentor program for young lawyers, and assistance to lawyers with ethical or substance abuse problems. Thus, the tangible financial benefits offered by unified bar associations are insufficient, both in theory and in practice, to justify coercive membership.
It has also been argued that unification is necessary to assure that all lawyers are steeped in the tradition of the law and that lawyers' professionalism is carefully nurtured throughout their careers. Charles W. Sorenson, Jr., The Integrated Bar and the Freedom of Non-Association - Continuing Seige, 63 Neb. L. Rev 30, 37. (1989). Proponents of unification rarely explain how this comes about. Presumably, they would argue that a unified bar can succeed where a voluntary bar cannot because it can force "unprofessional" lawyers to associate with unified bar activists, who theoretically adhere to higher professional standards. Professionalism, however, does not come from being conscripted into an organization a lawyer would prefer not to join. Patricia Hein, The Case for a Unified Bar, Wis. Law., 1991, 61.
Furthermore, the argument ignores modern realities. When the unification movement began in earnest in the 1920's, thirty two states had no formal educational requirements to practice law. As late as 1927, not a single state required attendance at law school before being admitted to the bar. Today, with few exceptions, lawyers in the United States must first pass through the bonding experience of three years of law school before being allowed to sit for a state bar examination. Lawyers must then pass a bar examination and submit to background investigations for character. Many states require continuing legal education, including an ethics component. Also, a large majority of lawyers in voluntary states belong to either their state association, a local association, or the American Bar Association. And, finally, all attorneys are subject to the general disciplinary authority of the courts.
Suffice it to say that lawyers in voluntary bar states reject the assertion that they are less professional because their states lack mandatory bar associations. Similarly, it is unlikely that lawyers in unified bar states feel that their own level of professionalism would be diminished if they were no longer required to belong to the association. Robert MacCrate, Legal Education and Professional Development - an Educational Continuum (ed.1997). The fact is that all lawyers today are inculcated with the ethical and professional norms of their profession commencing with their legal education and extending throughout their legal careers.
In summary, there is no reason to believe that lawyers in unified bar states benefit from their state associations in ways that lawyers in voluntary bar states do not. Nor are there any apparent public benefits. Indeed, unified bar states seem to lag behind voluntary bar states in protecting the public. Schneyer, id., at 99-100.
Any discussion of the pros and cons of an integrated bar begins with the issues of freedom of speech and freedom of association. Supporters of the integrated bar generally see no violation of First Amendment rights so long as the requirements of the Keller and Chapman cases are met. Those lawyers are satisfied that mandatory membership is permissible so long as mandatory dues are not used to engage in political or ideological activities. Other lawyers are opposed to the concept of a unified bar even if there are no political activities and even though those lawyers would join the association if membership were voluntary. The bothersome principle for dissenting lawyers is the violation of their right not to be forced to join an association and pay compulsory dues regardless of whether or not they agree with the positions and ideas of the association. The freedom from any compulsion to associate is a fundamental right which is arguably abridged by any form of a compulsory bar.
On the other hand, even if one considers the debate on the constitutional issues to end in a draw, the integrated bar loses the debate on every other front. Eighty years after the reform and unification movement was begun by Herbert Harley, few lawyers seriously argue that an integrated bar provides more affordable, available or better legal services, better trained lawyers, better service to justice, or a higher degree of professionalism, prestige or legitimacy in the community of lawyers. Against a lack of demonstrable advantages, there are demonstrable disadvantages: Keller and Chapman limit the scope of activities the bar may address; administrative costs and burdens of the bar increase; and conflict rather than compromise is fostered.
One final personal note. If the New Hampshire Bar Association were voluntary, I would be one of the first to join - and to pay my dues. But I would also expect to be able to advocate my views on all sorts of matters and, if I were fortunate enough to be in the majority, to encourage my professional association to take an aggressive public stand in support of those views.
Vincent A. Wenners, of the Manchester law firm of Craig, Wenners, Craig & Capuchino, has been a member of the New Hampshire Bar since he was admitted in 1967.