MANDATORY BAR STRUCK: Wisconsin rule violates First Amendment right of associationAuthor(s): Paul MarcotteSource: ABA Journal, Vol. 74, No. 4 (APRIL 1, 1988), p. 17Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759824 .

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MANDATORY BAR STRUCK Wisconsin rule violates First Amendment right of association

At first glance, Madison, Wis., lawyer Steven Levine seemed an un

likely plaintiff in a civil rights suit that sought to strike down manda tory state bar membership as uncon

stitutional. A Wisconsin government attor

ney, Levine had served on the state bar's board of governors for four years. "I just couldn't see how they could constitutionally force lawyers to belong to a state bar," he ulti

mately concluded. When three lawyers declined to

take the case on his behalf, Levine filed the action pro se, naming the bar and state supreme court justices as defendants.

Ruling on cross motions for sum mary judgment, a federal district court in February agreed with Lev ine. "I find that the payment of bar

membership dues as a condition of practicing law in Wisconsin is a sig nificant infringement on plaintiff's First Amendment right not to asso ciate and his right not to speak," wrote Judge Barbara Crabb in Lev ine v. Supreme Court of Wisconsin, 86-C-578-C.

"Furthermore, I find that defen dants have not identified a govern mental interest sufficiently com pelling to outweigh the infringement on plaintiff's rights, or shown that the mandatory bar requirement is the least restrictive means of achieving the goals embodied in the Bar's activ ities," the court concluded.

The state bar promptly an nounced its intention to appeal the decision. Wisconsin currently has about 15,000 bar members, and its dues are $115 annually.

Although initially affecting only Levine's bar membership, the deci sion raises larger questions, not only about the Wisconsin bar's future, but also for other mandatory bar associ ations across the country. Besides Wisconsin, 30 states plus the District of Columbia and Puerto Rico require lawyers to be bar members.

Twenty-seven years ago, the U.S.

Supreme Court upheld mandatory bar membership in another Wiscon sin case, Lathrop v. Donohue, 367

11^

U.S. 820 (1961). Judge Crabb's 57-page opinion

relied on a number of recent union membership cases, concluding those decisions undercut the Wisconsin bar's position. The court also stated that since Lathrop, "the character of the State Bar of Wisconsin has changed from what was presented to the court."

Judge Crabb concluded that the justifications for mandatory mem bership have decreased because in 1976, the Wisconsin Supreme Court created a separate agency to admin ister lawyer discipline and bar-ad

mission requirements. And this agency is financially supported by assessments separate from the man

datory membership dues. The state supreme court also now requires con

tinuing legal education to be self-sup porting.

Stephen Smay, executive direc tor of the State Bar of Wisconsin, countered that while disciplinary matters are handled administratively by a separate agency, the state bar

Steven Levine, a former member of the Wisconsin State Bar Board of Governors, was the unlikely plaintiff in the bid to overturn the state's

mandatory bar.

still appoints members to regional committees that report instances of lawyer misconduct. He said the state bar remains active in continuing le gal education.

UNANSWERED QUESTIONS Meanwhile, bar officials are

grappling with a number of unan swered questions left in the wake of the ruling.

Does the bar still have the right to collect dues? Can a member be dis barred for failing to pay dues? Do current members have a right to re

quest a refund of their dues? What would be the impact if the Wisconsin State Supreme Court reinstated the bar's disciplinary functions?

Officials in two of the larger mandatory bars, California and Texas, declined comment until they have a chance to review the decision.

Officials of other mandatory bars also are expected to review their op erations in light of the Wisconsin de cision. Lawyers involved in the

Wisconsin case say that a state bar's role in discipline and other public service functions will be critical ele ments affecting the outcome of any future suits.

In the 1940s, when states like Florida were switching to mandatory bars, control of lawyer discipline was a chief justification, according to Paul Hill, general counsel of the Florida Bar.

Hill said that "chipping away the discipline function" would leave a bar more vulnerable to such suits. In Florida, the state bar has retained complete control of lawyer discipline and continuing legal education pro grams, he said.

?Paul Marcotte

ABA JOURNAL / APRIL 1, 1988 17

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