Nevada is one of 31 states to mandate that attorneys — with certain limited exceptions — pay bar dues in order to practice law. But that traditional model might soon be disrupted.
On Monday, the U.S. Supreme Court indicated such arrangements could violate the First Amendment. The justices vacated an 8th U.S. Circuit Court of Appeals ruling that upheld forced bar dues in North Dakota and sent the matter back to the lower court “for further consideration.”
The move comes six months after the Supreme Court’s 5-4 decision in Janus v. AFSCME, which held that public-sector unions couldn’t force non-members to pay fees to the labor organization for bargaining purposes.
“No person in this country,” Justice Samuel Alito wrote in a similar case back in 2014, “may be compelled to subsidize speech by a third party that he or she does not wish to support.”
With that principle in mind, Arnold Fleck, a North Dakota attorney, sued his state bar association after learning it had spent $50,000 to oppose a state voter initiative that he had financially supported. He argued that a portion of his annual $380 dues was being spent on political activity he opposed. A similar case is pending in Oregon.
Mr. Fleck lost at the appellate court. But the Supreme Court’s decision Monday hints the justices believe he has a winning case.
“This is a major victory, not just for Arnold Fleck, but attorneys like him across the nation who have been forced to fund speech that they don’t agree with,” Timothy Sandefur, a lawyer at the Goldwater Institute, told the Los Angeles Times.
The reach of the Fleck case remains in the hands of the courts. Will restrictions on forced lawyer dues apply only to money used on politicking and lobbying by state bar associations? Or might they also apply to mandatory membership itself, which would have ramifications for the funding of attorney oversight and the overall practice of law?
Nevada lawyers, depending on experience, must pay up to $450 a year to the state bar for the privilege of practicing their profession. “This means,” Stephen Embry noted in a January essay for TechLaw Crossroads, “that the bar association can govern how and what you can and can’t do. You don’t comply, you don’t practice.”
Mr. Embry pointed out how several observers argue the system of mandatory bar membership “has stymied innovation in the legal profession” by limiting services available to legal consumers. He predicted that a high court “ruling in favor of the First Amendment in Janus could be the first crack in the dam of the unilateral power of associations.”
It looks as if Mr. Embry nailed it. As every TV viewer can attest, even lawyers have free speech rights.