A Peace Treaty for the Bar Wars: an Updated Framework to Determine Permissibility of Mandatory Bar Association Activity

• Publication year: 2022

A Peace Treaty for the Bar Wars: An Updated Framework to Determine Permissibility of Mandatory Bar Association Activity

Everett Stanley
everett.stanley@emory.edu

A PEACE TREATY FOR THE BAR WARS: AN UPDATED FRAMEWORK TO DETERMINE PERMISSIBILITY OF MANDATORY BAR ASSOCIATION ACTIVITY^†

ABSTRACT

First Amendment challenges against the constitutionality of mandatory bar associations have frequented federal appellate courts. However, only two Supreme Court cases are directly applicable to these claims, neither of which provides a clear framework to adjudicate all of the issues involved. As a result, appellate courts have taken divergent routes to determine the constitutionality of whether (1) mandatory membership to the bar generally violates the freedom of association, and (2) certain activities undertaken by mandatory bar associations violate the freedom of speech and, in some circuit courts, association. The first issue has resulted in a rift between circuits. The Sixth and Seventh Circuits assert that, pursuant to Supreme Court precedent, mandating attorneys to join a bar association does not violate the First Amendment freedom of association; the Fifth, Ninth, and Tenth Circuits disagree. As for the second issue, lower courts are left only with the Supreme Court's vague description of what mandatory bar association activity is permissible.

The first issue's circuit split has resulted in remarkable inconsistency among the states, thirty-one of which (and the District of Columbia) have mandatory—also known as integrated—bars. This Comment argues that the Sixth and Seventh Circuit Courts of Appeals, in Taylor v. Buchanan and Jarchow v. State Bar of Wisconsin, respectively, properly applied Supreme Court doctrine to the freedom of association issue, thus closing the door on such claims. As long as Supreme Court precedent remains binding, appellate courts are compelled to follow it. However, should the issue be determined in favor of the Fifth, Ninth, and Tenth Circuits, this Comment argues that freedom of association claims, along with freedom of speech claims, should be analyzed using a new proposed "germaneness" test.

This Comment introduces a multifactored sliding scale test to determine whether activities undertaken by integrated bar associations are sufficiently germane such that they do not violate the freedom of speech and, should the Sixth and Seventh Circuit approach be rejected by the Supreme Court, association. The test blends the approaches of the Fifth and Tenth Circuits to provide a comprehensive framework to determine the permissibility of bar

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association activity. Under this test, the challenged activity must satisfy a weak connection to pass the basic threshold—the standard for germaneness set forth by Chief Justice Rehnquist in South Dakota v. Dole. It then considers the strength of the connection between the activity and the stated goals of the bar association; the nature and public outreach of the activity; the societal dissonance of the challenged expression; and the bar's level of funding toward the activity. This test synthesizes Supreme Court precedent and current appellate understanding of the germaneness test, creating an easily applied framework from existing caselaw.

TABLE OF CONTENTS

INTRODUCTION..........................................................................................167

I. THE BIRTH OF INTEGRATED BAR ASSOCIATIONS AND THE FRAGMENTATION OF CASELAW......................................................169

A. The Creation of Integrated Bar Associations.......................... 170
B. The Supreme Court's Adoption of a Shaky Standard.............. 172

1. Lathrop and Compelled Membership................................ 173
2. Keller, Compelled Speech, and Borrowing Union Law Precedent......................................................................... 176

C. Splitting Hairs on the Keller Decision.................................... 180
D. Denials of Certiorari and Unwillingness to Decide ................ 185

II. PICKING SIDES................................................................................186

A. Compelling Membership ........................................................ 186
B. Compelling Members to Speak............................................... 191
C. Effects of Adopting the Sixth and Seventh Circuit Approach ... 193

III. CLARIFYING THE GERMANENESS STANDARD..................................194

A. Understanding Germaneness ................................................. 195
B. A Basic Threshold to Germaneness........................................ 197
C. Weighing Whether an Activity is Germane ............................. 198

1. Strength of the Tether....................................................... 198
2. Nature and Public Outreach of the Challenged Activity .... 199
3. Societal Dissonance of the Issue....................................... 202
4. Level of Organizational Funding...................................... 203

IV. DISCIMUS AGERE AGENDO.............................................................204

A. Applying the Framework to Crowe......................................... 204
B. Applying the Framework to Fleck .......................................... 208

CONCLUSION.............................................................................................209

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INTRODUCTION

Thirty-one states and the District of Columbia mandate attorneys to join the state bar association as a condition of practicing law.¹ Mandatory membership comes with benefits, such as increased capacity to improve access to legal services and the enforcement of disciplinary measures against unethical attorneys,² as well as detriments, namely dues or associated fees.³ These dues and bar association activities have been the subject of several controversies in the Supreme Court and appellate courts—challenges asserting violations of both the freedom of association and the freedom of speech.⁴ As of September 2022, there have been two Supreme Court decisions,⁵ five denials of certiorari,⁶ and decisions in each of the Fifth,⁷ Sixth,⁸ Seventh,⁹ Eighth,¹⁰ Ninth,¹¹ and Tenth Circuit¹² Courts of Appeals. This complex web of caselaw has aptly been referred to by one presiding judge as the "bar wars."¹³

In 1961, a Wisconsin attorney by the name of Trayton Lathrop challenged the constitutionality of the Wisconsin State Bar under the First and Fourteenth Amendments, alleging, among others, violations of his freedoms of association and speech.¹⁴ The Court rejected the freedom of association argument but failed to address the freedom of speech as a majority.¹⁵ Nearly thirty years later, in

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1990, the Court addressed a similar freedom of speech claim.¹⁶ The Court promulgated a standard by which activities of the bar associations are to be judged by how germane they are to the legal profession and the goals of the bar.¹⁷ When prescribing this test, however, the Court failed to provide more than two harsh extremes as examples,¹⁸ leaving lower courts to decide amongst themselves what specific activities qualify as "germane." Although the examples provided were, by all accounts, simple to follow, the challenges brought forth by dissenting attorneys are rarely so basic.¹⁹

As a result, each appellate court approaches the question of what activities are germane differently, with some finding that if any element of an activity is non-germane, all activities within that category are impermissible,²⁰ and others engaging in a piece-by-piece analysis of each activity of the same color.²¹ While these courts have managed to determine germaneness of activities of state bar associations, there is a ring of inconsistency around the country as determinations depend upon the state's regional locality. As courts approach the question of germaneness differently, there is a stunning lack of predictability for challenging attorneys and defending bar associations.

This patchwork approach is an inefficient route through which to answer the question of germaneness. Rather, this Comment introduces an original balancing test by which to analyze the germaneness of bar association activities in the freedom of speech arena and, should the Supreme Court reopen the issue, the freedom of association arena as well.²² In response to the need for consistency and predictability in adjudicating these challenges, this novel test operates on a sliding scale based on a series of precedents and policy purposes that determines

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whether an activity is sufficiently related to the legal profession. Due to the lack of clarity as to the threshold of the term "germaneness,"²³ this test uses Chief Justice Rehnquist's definition from a separate legal field as the baseline to provide a clear standard by which courts may determine the acceptability of bar association activities.²⁴ When a bar association's activity fails to meet Chief Justice Rehnquist's liberal standard of germaneness set forth in South Dakota v. Dole, the activity is per se non-germane and the inquiry ceases. Nevertheless, this light standard on its own is not a strong position for the bar association and may easily be outweighed by factors cutting against germaneness. To maintain uniformity, this test is based on both Supreme Court and appellate precedent, and matches Supreme Court doctrine from other legal fields to promote definitional continuity.²⁵

This Comment is composed of four parts. Part I introduces the background and history of bar associations, the first challenges that reached the Supreme Court, and the recent challenges at the appellate level. Part II explores these decisions in the context of existing Supreme Court doctrine, arguing that the Fifth Circuit's application of caselaw was improper whereas the Seventh Circuit's was correct. Part III introduces a four-factored balancing test built from decisions of the Fifth²⁶ and Tenth Circuits,²⁷ which provides clarity and consistency in the...