Bar Journal - June 1, 2001
Where Have We Been - Where Are We Headed:
By: Attorney Bruce W. Felmly
The Case For and Against the Unified Bar in New Hampshire
". . . It is entirely appropriate that all of the lawyers who derive benefits of the unique status of being among those admitted to practice before the courts should be called upon to pay a fair share of the cost of professional involvement in this effort." Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 2235 (1990).
The United States Supreme Court in Keller v. State Bar of California upheld against constitutional challenge, following its decision in Lathrop v. Donohue, 367 U.S. 820 (1960), membership in the State Bar Association of California as a condition to practice law in that state. In its Lathrop and Keller decisions determining that a "unified" or "integrated" state bar passed constitutional muster, the court went on to strike a balance between the use of mandatory membership dues to fund appropriate association activities, and the right of individual members to not support activities that were of an ideological nature and would therefore infringe the members protected rights of free expression. Since Keller, there has been a wide range of unified bar litigation, much of it focused on the mechanisms of dues rebates, or other adjusting features providing dissenting members relief from financially supporting association activities which may extend beyond those clearly related to the regulation of the legal profession or improvement of the quality of legal services. As this article is being written, the New Hampshire legislature has before it a bill seeking de-unification of the New Hampshire Bar Association, and the issue of whether Bar Association membership should be required as a condition of an attorneyís license to practice in New Hampshire remains a matter of controversy.
While the constitutional foundation for mandatory association membership may be clear, the fact that a unified Bar Association exists and operates within lawful parameters begs the question of whether it should do so. Thirty-two states operate their bar membership systems on a mandatory or unified basis. In New England, Rhode Island and New Hampshire are integrated or unified, while Connecticut, Vermont, Maine, and Massachusetts continue to operate with voluntary membership in the local bar association. It is an issue as to which not only can and will reasonable people have differing views and take opposite positions, but even within the same jurisdiction, positions can change. Take the case of the Wisconsin State Bar Association. Wisconsin became unified or an integrated association in 1958. It withstood constitutional challenge in the U.S. Supreme Court in Lathrop in 1961, but in 1988 a federal court declared the mandatory membership organization violated First Amendment principles and struck it down as unconstitutional. Subsequently, the Wisconsin Bar Association operated as a voluntary association for a number of years. In the wake of the Keller decision, the Wisconsin State Bar applied to the Wisconsin Supreme Court to reinstate the integrated bar, which the Wisconsin court did in 1992.
If states can operate bar associations in either a voluntary or compulsory membership format, what issues or factors must we examine to determine the best form of organization to serve the public, the profession, and its members. I will attempt to set out the arguments pro and con which are commonly raised with respect to the unified bar. Certainly, much of this commentary reflects my experience and bias with regard to the issues.
THE NEW HAMPSHIRE EXPERIENCE
The New Hampshire Supreme Court approved the unification of the New Hampshire Bar in 1968. In Re Unification of New Hampshire Bar, 109 N.H. 260 (1968). It did so on petition of the then voluntary New Hampshire Bar Association, an organization which the courtís opinion referenced as having 706 of the 750 actively practicing lawyers in the state. In its initial ruling, the court ordered the establishment of the unified bar for a three year period, finding that a unified bar would best serve the administration of justice by requiring all members to support with their dues the activities and programs of the profession. The court clearly specified that such an organization must confine its activities in connection with political views on matters dealing with the administration of justice, the operation of the courts, practice of law, and the legal profession. In 1972, after the three year trial period, the court again examined the integrated bar and concluded that the association had prospered and grown under unification and ordered that the unified status of the bar be continued without limitation in time. In Re Unified New Hampshire Bar, 112 N.H. 204 (1972).
While the court has discussed the unified bar on several occasions, the most important re-examination and qualification of its operation came in Petition of Chapman, 128 N.H. 24 (1986). In that case, the court examined and proscribed the limits of the New Hampshire Bar Association activities with respect to taking a position on certain legislation. The court examined the appropriateness of the association speaking out with respect to so-called tort reform legislation, specifying which components of the legislative package were properly within the unified bar associationís mandate and prescribing political comment in connection with other aspects which were deemed to impact on membersí rights to free expression and association.
In examining the operation and policies affecting the integrated bar of New Hampshire, it is important to assess the scope and nature of the activities of that association. Only in that context can we then project the magnitude and type of changes which may accompany de-unification. Certainly, the bar was a much smaller and less active association in 1968 when the court first approved unification. Now, there are approximately 4,000 active members, the diversity of membership of the bar has expanded with much greater participation by women, and the participation by members whose principal office is out of New Hampshire has increased significantly.2† The Bar also offers a much greater range of services, including offerings to the public and members, which represent a substantial stake to the profession if alteration in the mechanism of membership and funding occurs. Bar-sponsored continuing legal education totals approximately 80 programs annually, with over 3,800 registrations a year. The Barís support for legal services to the poor through the Pro Bono Program and support of the Legal Advice and Referral Center (LARC) are major initiatives of the association. Over 900 cases are referred annually to attorneys in the Pro Bono Program, including between 150 to 200 cases of domestic violence victims who require legal assistance. In addition, the Barís reduced fee and lawyer referral service direct approximately 4,000 cases to Bar members.
The communication offerings and services of the association are a major funding expense and service. New Hampshire Bar News provides a twice monthly newspaper, while the New Hampshire Bar Journal provides a more substantive legal periodical. In addition to the wide range of brochures, pamphlets, and informational offerings, the Bar maintains an extensive Web site, providing members with information on committee activities, events, and resources offered by the Bar.
The Bar is also extensively involved in public and community education related to the justice system. Law related education activities of the Bar ("Lawyer and Judge in Every Classroom," "We the People," "Mock Trial Competition," "Project Citizen," and "Beyond High School" publication) reach approximately 50,000 students annually, impacting over 200 schools through the efforts of 450 volunteers. In addition, through speakers bureaus, questions of law columns, public information, and many media contacts, the Bar provides extensive public information on the legal system.
The range of member services funded by the dues of the integrated Bar are also extensive, including:
- Group insurance and purchase plans
- Law firm management resources and library
- Lawyer assistance and mentoring
- Practical skills course for new lawyers
- Ethical opinions and advice
- Library services Ė CLE handbooks, tapes, substantive legal collection
- Administers mandatory continuing legal education program
- Supports committees and sections of the bar (over 2,000 members belong to one or more sections)
- Dispute resolution services
THE CASE FOR THE UNIFIED BAR
The U.S. Supreme Court in Keller, and the New Hampshire court in its unification decisions and in Chapman, largely premised their rulings on the assumption that there are aspects of professional membership which transcend individual participation, particularly as they impact on the regulation of the legal profession and improving the quality of legal services available to the public. Plainly, the New Hampshire court regarded the critical mass of all practitioners providing dues to fund continuing legal education and support professional programs which benefit the public as an important feature. Most courts which have addressed the issue weigh heavily the shared responsibilities of the profession and the practical inability to staff, fund, or address programs without the support of all members. Presumably in that context, smaller state bars, such as New Hampshire, reflect that need to a greater degree than would be the case in larger jurisdictions.
Examining the dues and revenue structure of unified versus non-unified bars raises the issue of whether de-unification would be an expensive decision for the New Hampshire lawyer. New Hampshire Bar membership dues are currently $190. By contrast, Vermont charges a $140 annual state registration and Massachusetts charges $220. But in Vermont and Massachusetts, beyond the certificate to practice law, there are virtually no services. Establishing voluntary bar membership is then an additional $140 in Vermont and $220 in Massachusetts. In a de-unified format, publications such as New Hampshire Bar News, access to the Website, and payment for New Hampshire Bar CLEs at subsidized rates would no doubt be reconfigured, assuming that they could be offered at all, with additional charges to members. There is no serious question that the wide range of "bundled" services and resources for New Hampshire lawyers under the funding available with mandatory membership will not be afforded in a voluntary bar model with limited participation by New Hampshire lawyers. The changes in services and programs available to New Hampshire lawyers could be dramatically contracted under a voluntary bar format. Probably, the greatest concern for contraction of services and resources with de-unification will be in the areas of publicly provided legal services and public education. In writing his concurring opinion for the Wisconsin Supreme Court, Justice William Bablitch supported the re-establishment of the unified bar and set out very clearly the public benefits of the integrated model.
I fear, in fact I predict with certainty, that a return to a voluntary bar would be a return to those days of stagnation, to those days when the question of "whatís in it for me?" drowned out the question of social responsibility. The lessons of the past are evident.
The mandatory bar has been an essential force in the assisting lawyers to fulfill their roles as guardians of the rule of law. Of equal importance, the mandatory bar has been a guiding force in assisting lawyers to deliver an increasing quality of justice to society and to those they represent. Many if not most of the services the bar delivers in pursuit of these goals are not self-supporting and are not capable of being subject to user fees. To cite but a few, they include: publications to members keeping them up to date on legal developments including orders and decisions of this Court which regulate the profession and discipline attorneys; publications for public consumption informing the public on matters of justice and the rights and responsibilities of citizens under law; lawyer referral service, assisting members of the public to find qualified lawyers regarding specific legal issues; assistance and promotion of pro bono activities; fee arbitration service; assistance in the disciplinary system by appointing approximately 200 lawyers and lay person to district grievance committees; ethical advice and guidance to members; assistance to alcoholic, ill and disabled lawyers through the "lawyers helping lawyers" program.
. . . If we go back to a voluntary bar, time and money spent on recruiting will mean less time and resources spent on programs. Guess what programs?
If we go back to a voluntary bar, time and money spent on maintaining membership will mean time and money not spent on other services. Guess what services will suffer?
The answers are obvious. Programs and services not targetted to the "bottom line" will inevitably suffer.
In Matter of State Bar of Wisconsin, 169 Wis. 2d 21 (1992), 485 N.W.2d 225 (Wis., 1992) (Bablitch, J., concurring).
Finally, beyond programming and providing services, there is the question of whether New Hampshire lawyers benefit and are nurtured by membership in a common professional organization, especially one centered in enhancement of the rule of law and service to the public. This, of course, to many lawyers sounds like the talk of "closed shop," trade unionism, and generates the cynicism so refined in lawyers against mandatory anything or any restriction perceived to affect their freedom of expression or association. This is an important concern and will be visited below in discussing the risks and disadvantages of unification. Let me add a personal note Ė having participated extensively in the work of the New Hampshire Bar in a variety of ways, including the privilege of having served as its president, I see the fear of actual limitation on expression or development of a party line as remote. In fact, diversity of view is very common among members of the Board of Governors and the membership in general. Members work hard to express themselves with civility and collegiality, but the history of unified membership is one of hardy debate and expression. If anything, I would suggest that the profession would experience a greater degree of homogenization of opinion and thought under a voluntary bar where it is likely that certain aspects of the profession with the interest, time, and resources to participate may play a disproportionate role in establishing the voice of New Hampshire lawyers.
Concerns as to the independence of the bar association from the judiciary are legitimate, and we need to be vigilant of the risk of too much control by the court, but that is equally true in a voluntary bar association format. The best way to assure such strong and effective independence is by bringing all members under the tent and developing sound leadership, freedom of expression, and decision making. To go down the de-unification road, putting at risk valuable bar programming in the absence of proven restriction of member expression, is not in the professionís best interest.
THE CASE FOR A VOLUNTARY BAR
The place to start with any assessment of de-unification is with the fact that many states successfully operate under a voluntary bar association model. While a majority of states are integrated, a substantial minority are not. By all accounts, Vermont, Maine, Massachusetts, and Connecticut are not faltering. There are pro bono programs, law related education, and member services in those states. Even if the bundling of services in an integrated bar creates a cost savings, for those lawyers who only want to practice and not obtain all of those services, their choice results in potential savings.
The proponent of de-unification would argue that it is an excellent time to address change. The legal profession faces challenges unimagined in 1968. Not only does the public, including the legislature, distrust the profession, but the profession has become so diverse, that no one organization can realistically expect to speak on its behalf. The traditional practice of law, in an environment where state boundaries are becoming irrelevant, where accountants increasingly dominate the provision of services once the province of lawyers, where title insurance companies have assumed much of real estate practice, is evaporating. To face these challenges by having "the organized bar" address the issues, under the guise of protecting the public, is unrealistic. Even if lawyers are not constrained by mandatory membership, these are times innovation, imagination, and diversity of thought, and a mandatory association model simply gets in the way.
The notion that in a voluntary association lawyers will only think about themselves and ignore public responsibilities is far fetched and not supported by experience in other states. Even in Wisconsin under its period of de-unification, approximately eighty percent of the lawyers continued membership in the voluntary state bar While a reduction in membership in New Hampshire below fifty to sixty percent would likely dramatically impact programs and services, are we certain that the successes of the New Hampshire Bar over many years, and the need for lawyers to communicate on matters of common interest, would not cause retention of high levels of participation? Should we find this out rather than simply arguing no one would join? And while the voluntary organizations do commit significant time, resources, and energy in member acquisition and retention, this is not all bad or an unfortunate cost of doing business. Such organizations may place a higher value on serving those members and staying relevant to member needs.
But beyond the reasonable give and take over projected services and activities which fairly characterize the debate, the strongest reason for creating a voluntary professional association rests in the need to maintain the independence of lawyers. Justice Shirley Abrahamson, dissenting from re-unification in Wisconsin, stated it this way.
Our legal system and our fundamental liberties rest to a large extent on an independent bar and an independent judiciary. The bench and bar should, I believe, strive for amicable relations, but the public interest requires that each be independent of the other. It is important for bar organizations to be free to take positions not favored by the bench, and for the bench to regulate the practice of law in the public interest (which may not necessarily be in the interest of individual lawyers or a bar organization). The unified State Bar of Wisconsin, controlled as it is by this court, cannot be independent, as many lawyers have openly acknowledged. Thatís not good.
In Matter of State Bar of Wisconsin, supra at page 40 (Abrahamson, J., dissenting).
It is useful and appropriate to examine the role of the unified bar in changing and challenging times. The case against mandatory membership, particularly in my view the concern with preserving the independence of the bar, remains an important issue. The contention that the unified New Hampshire Bar Associationís wide range of public interest and educational programs will be met in a voluntary format seems improbable. In fact, small states with voluntary associations do not offer the range and quality of programs and communications offered and supported in New Hampshire. To replicate such offerings in a voluntary model would likely require a combination of assessments which could make the cost of professional membership significantly higher. Nevertheless, these are choices that can be made and may be appropriate to examine.
Even its harshest critics recognize the high quality and diversity of New Hampshire Bar Association programming. The critical services which may be most at risk in de-unification are those that will benefit and affect the public in terms of education and legal services to the poor. The suggestion that pro bono services or public education services will be provided by alternate government funding or unspecified newly created delivery systems goes beyond a leap of faith. The stakes are high for New Hampshire on those activities which directly affect the public and discussions regarding the role of the unified bar should keep those programs centered in the view finder.
The balance to be struck between those responsibilities we share as lawyers and which we accept by choosing this profession and the need to retain and enhance personal liberties of association and expression will continue to drive this discussion in our future. And the dialogue and examination will occur in a setting of dramatic professional and societal change. We owe it to ourselves, the public, and the system of justice to weigh the issues carefully and to assure ourselves we are moving forward with each step or change.
There is no serious legal or constitutional question presented as to the continuation of the New Hampshire Bar Association as a unified organization. That determination has been made, and the methods for striking the balance between personal expression and association and mandatory membership have been developed in many forums. An important issue will be whether the level of programming can be sustained in New Hampshire if there were de-unification, and whether the cost of professional membership will dramatically rise under the voluntary model. Some programs, especially activities to the public, are clearly at risk, and the costs for professional participation will likely go up with de-unification. At the heart of the discussion is this question: Which model will enable the profession to respond to great change while remaining true to the principles at the core of our legal system, and yet continue to safeguard and enhance the personal freedom of expression which lawyers hold dear?
- Mr. Felmly is a Director at McLane, Graf, Raulerson & Middleton, Professional Association. He was admitted to the New Hampshire Bar in 1972 and has served the New Hampshire Bar Association in a variety of positions, including as President in 1995.
- As of April 2001, 930 Active Membership Status attorneys report principal offices out-of-state. The total NHBA membership (5133 including all membership categories in all locations) includes 1576 women.