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06/01/83 REPORT COMMITTEE TO REVIEW STATE BAR

June 1, 1983

REPORT OF COMMITTEE TO REVIEW THE STATE BAR


The opinion of the court was delivered by: Per Curiam

PER CURIAM

On December 28, 1981, pursuant to SCR 10.10, the court appointed a committee, chaired by Mr. John Kelly, to review the performance of the State Bar in carrying out its public functions. In addition to Mr. Kelly, the committee consisted of the following persons:

Attorney William Adler, Eau Claire Mr. Kenneth Blanchard, La Crosse Attorney Harry Carlson, Jr., Milwaukee Professor Arlen Christenson, Madison Attorney Glenn Coates, Racine Attorney Karl Goethel, Durand Attorney Amedeo Greco, Madison Hon. Richard Greenwood, Green Bay Professor Joel Grossman, Madison Mr. Paul Hassett, Milwaukee Attorney Janet Jenkins, La Crosse Dean Charles Mentkowski, Milwaukee Attorney Charles Richards, Kenosha Attorney William Skemp, La Crosse Ms. Carol Toussaint, Madison Attorney Jennifer Wall, Waukesha Professor John Kidwell, Madison (Reporter)

At the time of its appointment, the committee was asked to address the following issues:

1. Continued integration of the State Bar

2. Bar activities carrying out its public functions (delivery of legal services)

a. Pro bono services

b. Education of the public as to its legal rights

3. Impermissible bar activities

a. Legislative activities (except those affecting the administration of Justice and the practice of law, including substantive issues involving lawyers' special expertise)

b. Political activities, e.g., LAWPAC

4. Representation of members

a. Redistricting or reapportionment of districts

b. Governing structure of the State Bar

After the date for the filing of the committee's report had been extended by the court, the committee filed its report on October 1, 1982. A public hearing on the report was held in the Supreme Court on February 15, 1983, at which several members of the committee, two state legislators and a number of Wisconsin attorneys appeared and presented their positions on the issues to the court.

Before addressing the committee's report and recommendations, we wish to take this opportunity to express our deep appreciation to the members and reporter of the committee, whose work reflects the serious and difficult task they were assigned and whose time and effort to conduct the review was considerable. Their report constitutes a significant public service, and it is most valuable to the court in its consideration of what changes, if any, should be made in the organization and structure of the State Bar.

The committee's report consists of five resolutions, which are set forth in the appendix to this opinion.

THE UNIFIED BAR

The committee recommends that the State Bar be retained as an organization in which membership is required of all persons licensed to practice law in Wisconsin. This recommendation, however, is not unqualified, for the committee noted that compulsory membership in the association raises "certain legitimate concerns about individual freedom of association and expression." Consequently, the committee's recommendation for continued bar unification is conditioned on the adoption of recommended changes in the manner in which the association engages in legislative activity and the establishment of a procedure whereby a member may obtain a refund of that portion of association dues which are used to support legislation which the member opposes.

The committee was unanimous in its Conclusion that membership in the legal profession carries with it certain obligations to the public, as well as to the profession. The report lists the following activities, which it feels every lawyer can properly be required to support, whether by membership in and financial support of a unified bar association or otherwise:

the provision of continuing legal education to members of the bar;

the provision of a disciplinary system to insure the quality of legal services in the state;

the provision of a system for admission to practice which assures the qualification of lawyers admitted to practice;

the provision of a system to control the unauthorized practice of law;

the provision of a client security fund, and a system to make reparations for losses by clients; the maintenance of a mailing list of all licensed attorneys;

the maintenance of a program to control trust funds held by attorneys;

the operation of a program of public information with respect to legal questions, the functions of the courts, and the administration of Justice;

the collection of funds to support the obligatory programs just identified.

We agree that lawyers may properly be required to financially support these functions, and we also agree with the committee's Conclusion that a unified bar association, which all licensed practitioners are required to join, is better suited than a voluntary association to accomplish them. The committee notes that a unified bar association is more likely to administer its programs in the public interest, that the performance of such functions is more efficient and economical if conducted by a single association financially supported by all lawyers and that voluntarism, on which the accomplishment of these goals by the existing association almost exclusively depends, is better promoted by a unified bar association. Whether or not these considerations are sufficient to justify the requirement that all lawyers be members of the association, it is our opinion, as it has been for more than 25 years, that a bar association in which membership is mandatory is the best means for the profession to fulfill its obligations to the public. We do not see as a practicable alternative a voluntary association of lawyers to which all practitioners, members or not, would be required to contribute for the performance of only those functions which we deem to be the obligation of every lawyer.

However, there is one area of the association's activity which the committee believes must be more particularly circumscribed if membership in the association is to continue being mandatory, and that is legislative activity. While all members of the committee believe that a bar association should maintain an active involvement in the legislative process, a majority of the committee urges that we, by rule, alleviate the concerns of those members who oppose all or any particular association involvement in the legislative process, since the dues they pay to maintain membership are used to finance such activity.

We have been sensitive to this issue since the association was unified in 1956 and have addressed it on numerous occasions. See, Lathrop v. Donohue, 10 Wis. 2d 230 (1960), In re Regulation of the Bar of Wisconsin, 81 Wis. 2d xxxv (1977), Matter of Discontinuation of the Wisconsin State Bar, 93 Wis. 2d 385 (1980). In our 1977 opinion we limited the State Bar association's authorization to engage in legislative activities to "only as to matters concerning the administration of Justice and the practice of law, including matters of substantive law on which the views of lawyers have special relevance." In re Regulation of the Bar, (supra) , at xxxix-xl. We then enunciated the guiding principle of the association's legislative activities, indeed, of all its activities, namely, the public interest. Id., at x1.

The committee suggests that the "administration of Justice and the practice of law" standard is too broad and that it obscures the demarcation between technical information and advocacy on legislative matters. The committee considered but rejected the creation of a more restrictive definition of permissible legislative activity as a solution to this issue, believing that it would constitute "an unworkable and counterproductive approach" and would unduly hamper the association in its permissible legislative activity. Rather, the committee recommends that the bar association be urged to publicize to its members, to the extent possible, the legislative questions on which it is likely to take a position and to inform them as to the time and place of the Board of Governors' meetings at which action is likely to be taken. Further, the committee recommends that the State Bar have the support of 60 percent of its Board of Governors on any position taken before the legislature.

We addressed this issue in 1977, when we considered the Parnell Committee's resolutions (1) supporting the role of the bar in the lawmaking process on subjects on which the professional expertise of lawyers has special relevance, (2) declaring that it is for the Board of Governors to determine how this role should be implemented, (3) stating that it is appropriate for the State Bar to provide financial support to other entities when effective participation in the lawmaking process requires but not for it to support candidates for office, and (4) urging the bar to place greater emphasis on research and technical services than on traditional lobbying activities. We stated our agreement with all of these points, except that we specified that major issues of legislative policies should, when possible, be brought before the membership at the assembly session of the midwinter or annual meeting. In re Regulation of the Bar, (supra) , at xxxix. We reiterate our prior statement, but we do not go so far as to require that the association's Board of Governors have a specified degree of support for a proposed position on legislation prior to taking that position. We leave to the Board of Governors the question of what constitutes "the composite judgment of the members of the bar" *fn1 or "substantial unanimity among the membership" *fn2 in order to represent to the legislature that a position on specific legislation is that of the association.

The committee apparently believes that no degree of "substantial unanimity" is sufficient to require that members opposed to the bar's position on legislation, whether legislation in general or specific legislative proposals, contribute to the advocacy of that position by the payment of dues, compulsorily exacted, which are used to finance the bar association's legislative activity. Consequently, the majority of the committee recommends that there be instituted a rebate procedure requiring the association to publish in its official publication, after each legislative session, the amount that has been expended from member dues on each legislative matter in which the association participated during that session, showing the total amount expended on all legislative activities, as well as the amount expended on each separate legislative issue. Further, the publication should show the cost to each member of all legislative activity and as to each separate legislative issue. Each member would then be entitled to request and receive a refund of his or her portion of dues expended either as to all legislative activity or only as to one or more specific legislative items. The committee also recommends that the request for a refund be treated in strict confidence and that the refund be granted as a matter of course.

This recommended rebate procedure is obviously in response to recent case law which addresses the issue of the use of mandatory membership dues to support political or ideological activity to which an individual member is opposed. See, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), Browne v. Milwaukee Board of School Directors, 83 Wis. 2d 316, 265 N.W.2d 559 (1978), Falk v. State Bar of Michigan (plurality opinion), 411 Mich. 63, 305 N.W.2d 201 (1981), Arrow v. Dow, 544 F. Supp. 458 (D. N.M. 1982), Schneider v. Colegio de Abogados de Puerto Rico, 546 F. Supp. 1251 (D. P.R. 1982). Assuming, arguendo, that those cases are applicable here, we believe that the rebate procedure proposed by the committee is an acceptable and adequate response to any claimed infringement on the rights of those association members who oppose the association's position on specific legislation. Moreover, in order that a Dissenting member not be required to specify those legislative issues on which the association has taken a position to which he or she is opposed, the rebate procedure should entitle a member to a rebate for that portion of his or her dues spent on all legislative activity, without specification, and if the objecting member wishes to contribute part of the rebated amount in proportion to the amount spent on legislative issues to which he or she was ...


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