June 2016 Bar Bulletin
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June 2016 Bar Bulletin

State Bar Association Choices

By Mark Alexander

To be or not to be — a mandatory or voluntary state bar association? That is the question.1

We are not talking about the licensing of lawyers; all 50 states regulate the admission to and practice of law, and provide discipline for errant attorneys. That may be through the state court system’s authority to regulate those who practice there through a separation of powers approach (such as Washington2 and Wisconsin), through legislative action (Oregon) or through the state’s constitution (as in California).

The debate revolves around providing additional services related to the law and lawyers: CLEs, special interest sections, victim compensation, fee disputes, legislation, leadership training, etc. The states are divided between mandatory (aka integrated or unified) and voluntary bar associations. Washington presently has a mandatory bar. Why should we question the choice now?

At its Sept. 20–21, 2012 meeting, the WSBA Board of Governors created a work group to explore and make recommendations about the governance of the Washington State Bar Association. The result was the June 24, 2014 report of the WSBA Governance Task Force.3 That report frankly recognized the tension between: a) most WSBA members’ belief that WSBA is an “association” of attorneys that serves its members’ interests, and b) its historical genesis and authority as a regulatory and disciplinary arm of the state Supreme Court.4

Among the report’s observations:

Although the organization is cast as an association of lawyers, its purpose is not that of a traditional “trade association” that operates for the primary or exclusive benefit of its members. In Washington, voluntary bar associations play that role. Rather, the WSBA is charged with the protection and enhancement of the legal system. Other permitted activities further that goal. For example, member services are permitted under GR 12.1(3), not because they serve the interests of the membership, but because they promote a more competent and skilled body of legal professionals to the benefit of the public. (p. 7)

Another area of ongoing tension arises from the Supreme Court’s creation of six boards that it has assigned to the WSBA for operations, staffing, and funding. These are the Disciplinary Board, the Mandatory Continuing Legal Education (MCLE) Board, the Limited Practice Board, the Access to Justice (ATJ) Board, the Practice of Law Board, and the Limited License Legal Technician (LLLT) Board. While the Court sets the mission of these boards, it provides no funding or staffing for them. Instead, the Court expects funding and staffing to be provided by the WSBA. (p. 9)

Historically, there have been tensions between the Board of Governors and the six boards created by the Supreme Court and placed under the WSBA for purposes of funding and staffing. On these occasions, the WSBA staff has been caught between these two entities. While the WSBA staff is obligated to fulfill the Court’s mandate, it is also accountable to the Board.

Examples of these tensions abound. Most recently, the Board of Governors threatened to refuse to allocate license fees to the Practice of Law Board. And while it opposed the creation of Limited License Legal Technicians (LLLTs), it now must provide funding and staffing to the LLLT Board. (p. 11)

The proper role of the Board of Governors vis à vis the WSBA is not clearly defined or well understood. First, … GR 12.1 permits the WSBA to engage in various pursuits, all of which ultimately should accrue to the benefit of the public. This orientation should be reflected in the governance structure of the WSBA. It is not. Governors are elected by Congressional District. And the WSBA Bylaws note that “[e]ach Governor represents a constituency of the Bar.” WSBA Bylaws IV.A.2.b. They direct the Board of Governors to operate as a “representative body of all members.” Id. at IV.A.2.a. Taken together, these feed into the erroneous notion that Governors should represent the wishes and desires of their “constituents.” Indeed, when asked about their roles, both new and experienced Governors have spoken of representing their constituents and fulfilling their “fiduciary duty” to members within their districts. (p. 13)

... the WSBA Bylaws should be amended to eliminate characterization of the Board as a representative body whose members represent a constituency of the WSBA. (p. 14)

A number of states have chosen to serve the different purposes through separate organizations.5

Within the last 20 years, challenges have been mounted against mandatory bars in California, Florida, Washington and Wisconsin, among others. In Nebraska, the state’s Supreme Court removed attorney regulation and discipline functions from the state bar association, leaving other services such as legal research and other member programs to be covered by voluntary dues payments. Other states, such as Hawaii, changed from a voluntary to a mandatory bar.6 In June 2014, the Michigan bar decided to remain a unified bar, as did the Arizona bar in September 2015.

Pros and Cons

Advocates of voluntary bars maintain that they are more careful about how dues are spent and are more responsive to their members, because members’ disapproval may be shown by withdrawing their membership and their dues. Members vote with their feet.

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