Office of Bar Counsel, 082021 WYBJ, Vol. 44 No. 4. 10

AuthorMark W. Gifford
PositionVol. 44 4 Pg. 10

Office of Bar Counsel

No. Vol. 44 No. 4 Pg. 10

Wyoming Bar Journal

August, 2021

Why Does the Bar Stay Out of Politics?

Mark W. Gifford

Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

In 2016, the Wyoming Supreme Court approved an amendment to the Bylaws of the Wyoming State Bar that limits the Bar’s political and ideological activities to those that are germane to the Bar’s core functions. The provision is found in Article I, Section 5 of the Bylaws: (p) Political and Ideological Activities. The Wyoming State Bar shall not, except as provided herein, use the license fees of its members to fund activities of a political or ideological nature that are not reasonably related to:

(1) the regulation and discipline of attorneys;

(2) matters relating to the improvement of the functioning of the justice system;

(3) increasing the availability of legal services to the public;

(4) the education, ethics, competence, integrity, and regulation of the legal profession; and

(5) any other activity authorized by Court rule or law.

This provision, often referred to as the Bar’s Keller policy, is intended to prohibit expenditure of members’ license fees for political purposes not germane to the practice of law. It was drafted with an eye toward the 1990 holding of the United States Supreme Court in Keller v. State Bar of California, 496 U.S. 1 (1990). In Keller, the Court held that use of the plaintiffs’ compulsory dues to finance political and ideological activities with which they disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.

The Keller Court noted that the State Bar of California’s principal funding comes from dues levied on its members, rather than from appropriations made by the legislature; its membership is composed solely of lawyers admitted to practice in the state, and its services by way of governance of the profession are essentially advisory in nature, since the ultimate responsibility of such governance is reserved by state law to the California Supreme Court. By contrast, the Court reasoned, there is a substantial analogy between the relationship of the Bar and its members and that of unions and their members. Just as it is appropriate that employees who receive the benefit of...

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