SCOTUS Denies Petitions Challenging Mandatory Bar Associations

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The Supreme Court (SCOTUS) recently denied petitions from attorneys in Texas, Oklahoma, and Michigan seeking to prohibit mandatory bar associations on the basis that requiring dues to these organizations may violate attorneys’ first amendment rights.

In the 30 states and Washington, D.C. with mandatory bar associations, these organizations sometimes fund or work to support initiatives that conflict with some attorneys’ personal or political beliefs.

Some of the petitioners have likened their petitions to a 2018 SCOTUS ruling, Janus v. AFSCME, which said states cannot require public workers who opt out of joining unions to pay the fees. If heard, the cases from Texas, Oklahoma, and Michigan would extend this ruling to mandatory bar associations.

Examples of some states’ grievances with mandatory bar associations include:

  • the Oklahoma Bar Association publishing articles criticizing campaign contributions by special interest groups;
  • the State Bar of Texas openly supporting pending legislation;
  • and the Wisconsin Bar taking a position on legislation prohibiting health plans from funding abortions, legislation on felon voting rights, and items in the state budget (as detailed in Jarchow v. State Bar of Wisconsin, rejected by SCOTUS in 2020)

More recently, the 7th U.S. Circuit Court of Appeals at Chicago turned down a challenge by a Wisconsin lawyer who argued that SCOTUS had implicitly overruled Keller v. State Bar of California, its 1990 decision upholding mandatory bar membership. The ruling upheld that Wisconsin’s mandatory bar doesn’t violate First Amendment rights.

Mandatory bar associations vs. voluntary bar associations

Bar associations have existed since the 1870s, while mandatory bar associations were first created in the 1920s. Their original purpose was to give bar associations more power to effect change for the self-regulating legal profession and to increase membership numbers.

A mandatory bar association—also referred to as an integrated or unified bar association—requires all attorneys in a state to be dues-paying members in order to practice law in good standing, unlike voluntary bar associations. In many cases of mandatory bar associations, these organizations then also act as an arm of the state and a regulatory body for attorneys. They may handle admission, licensing, and discipline where voluntary bar associations would not.

However, both mandatory and voluntary bar associations serve these functions for their membership:

  • Creating networking opportunities
  • Providing CLE and professional development resources to support lawyers in their work
  • Educating lawyers on changes in the practice of law
  • Sharing other membership benefits, such as discounts for professional service

Membership dues are used to support these initiatives.

Illinois is a voluntary bar association state

Illinois does not require that attorneys join a bar association in order to practice law in the state. The Illinois State Bar Association, founded in 1877, is one of the largest voluntary bar associations in the country.

The ISBA provides professional services to Illinois-licensed lawyers and educates and serves the public. Other resources provided to ISBA members include:

Additionally, Illinois has almost 50 other voluntary bar associations for affinity, geographic, and practice-based groups that provide similar benefits in addition to fostering a sense of community with attorneys of similar backgrounds.

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