Volume 109

The End of Mandatory State Bars?

by Leslie C. Levin

The country’s thirty-one mandatory state bar associations are facing an existential threat following the U.S. Supreme Court’s decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to compel bar dues payments from objecting lawyers and expend dues to fund traditional bar functions. Mandatory state bars—which function both as regulators and as traditional bar associations—are now defending themselves against claims in several states that compelled bar dues payments violate lawyers’ First Amendment rights. This Essay considers whether these compelled payments are likely to withstand constitutional scrutiny post-Janus. It focuses on the constitutional analysis outlined in Janus, with emphasis on the question of whether the states’ interest in lawyer regulation and improving the quality of legal services can be achieved through alternative means that are significantly less restrictive of lawyers’ associational freedom than compelled bar dues payments. To answer this question, the Essay compares the activities of the country’s mandatory and voluntary state bar associations along several dimensions. The comparison reveals that states with mandatory bars are unlikely to be able to demonstrate that the states’ interests cannot be achieved through significantly less restrictive means. While this result would be a loss for the legal profession, there could be benefits for the public.

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