Lawyers Could Soon Be Able to Abstain from Bar Dues as a Result of Janus Decision

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US Supreme Court - Photo by Mr. Kjetil Ree - WikiMedia Commons

There was news last week of a decision by the US Supreme Court that will likely pave the way for attorneys to make their own choice of whether to pay bar dues or not in 31 states plus DC where it is now mandatory.

The case, Fleck v. Wetch, had its original decision by the 8th Circuit vacated and remanded back to it by the Supreme Court in light of the Janus v. AFSCME decision reached five months ago. That case allowed any and all public sector workers across the country the opportunity to have to affirmatively opt in to being a union member, and allow current members the chance to opt out of it. This has been controversial as many unions and their supporters think this is a stealth way to weaken union membership and activities throughout the United States.

Those supporting the Janus decision, however, frame it as a case of expanding worker freedom, especially as the contention of the case that was overturned by Janus, Abood v. Detroit BoE, had not panned out as the judges had then predicted. It was thought that public sector unions would not give into ideological pursuits, and would stay more politically neutral when negotiating for their members. As time went on, the nature of their negotiations in many places became more clearly ideological, with many members calling out long-term consequences of high-cost rent-seeking at the expense of taxpayers, such as Illinois, from where Janus, the plaintiff, hailed.

In Fleck, the situation is that a lawyer in North Dakota supported one side of a state referendum in 2014. The State Bar there supported the opposing side and gave money to that side’s campaign. Fleck, a mandatory member of the North Dakota State Bar per state law, opposed this as an imposition on his right to free association and speech, and filed suit. He lost at the appellate level before being granted relief by the Supreme Court.

A lawyer at the Goldwater Institute, Timothy Sandefur, who had helped Fleck in his case, had this to say on the matter:

“The Court has long held that the government may not “presume acquiescence in the loss of fundamental rights.” Yet that’s just what North Dakota’s system does. Lawyers are sent a bill every year that lists not only their bar dues, but also additional fees that are spent on political lobbying. In tiny fine print, they’re told that they can deduct this if they want. That, the Eighth Circuit had said, was enough—it proved that Fleck and other lawyers were being given the opportunity to “opt in.” But that’s not an “opt in” system at all. It’s an “opt out” system that assumes that—unless you figure out how to get out of it—you’re compelled to support political activities by the State Bar.”

Deborah La Fetra of the Pacific Legal Foundation, another Organization helping Fleck. had more:

“PLF, which has long supported attorneys’ efforts to refrain from subsidizing the political and ideological activities of state bar associations, filed an amicus brief supporting Fleck’s petition. Like Janus, this case seeks to overturn outdated Supreme Court decisions that permit significant infringement on First Amendment rights. The Supreme Court approved statutes that force attorneys into centralized, government-run bar associations in a 1961 case, Lathrop v. Donohue, and reiterated the holding in dicta in Keller v. State Bar of California (which presented a direct challenge only to subsidization of politicking, not to forced association for general regulation purposes). The Court made certain assumptions when it decided those cases, among them that state bar associations were well-suited to competently regulate the legal profession. Whatever may have been the case in 1961, subsequent years have not borne out that ideal. Just as Janus recognized that the premises underlying Abood v. Detroit Board of Education reflected an unrealistic view of public employee unions, Fleck presents an opportunity for judicial recognition that Lathrop and Keller also failed to appreciate the increasing and pervasive politicization of mandatory state bar associations, and overestimated the ability of a the mandatory associations to be careful stewards of mandatory dues.”

There is no clear timeline for the case at the 8th Circuit, but the turnaround for a new decision is likely to be within the next several months.

Here are some links with more information on the case:

http://www.abajournal.com/news/article/challenge_to_mandatory_bar_returns_to_8th_circuit_after_supreme_court_order
https://thehill.com/opinion/finance/418992-long-live-unions-unions-are-dead
https://news.bloomberglaw.com/us-law-week/high-court-sends-back-bar-membership-row
https://www.latimes.com/politics/la-na-pol-court-bar-dues-20181203-story.html
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