At the Friedrichs oral argument, Justice Ginsburg asked Michael Carvin, the attorney for Rebecca Friedrichs, how a decision overruling Abood v. Detroit Board of Education, would affect Supreme Court decisions authorizing mandatory fees to bar associations.  Whether intentional or not, Carvin’s answer was more than a little misleading.

To back up, a number of states require all lawyers to pay dues to a state bar association as a condition of practicing law in a State.  In 1961, in a case called Lathrop v. Donohue, the Supreme Court considered a case brought by a Wisconsin lawyer who was required to pay an annual fee to the state bar.  Six of the nine justices found that the case was “no different” from an earlier case where the Court had rejected challenges to mandatory union fees.  Subsequently, in Keller v. State Bar of California, the Court agreed that objecting lawyers could withhold funds that were used by the state bar on matters unrelated to “advancement of the science of jurisprudence or to the improvement of the administration of justice.”  The Court stated that it might be hard to draw the line in some cases, but that “[c]ompulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative.”

This gets us back to the Friedrichs argument.  Justice Ginsburg asked whether Keller would fall if the Court overturns Abood.  Carvin responded that it wouldn’t because the rationale of Keller is “significantly different” than the rationale of Abood.  In making this argument, Carvin initially relied upon the Supreme Court’s decision in Harris v. Quinn, where the Court majority tried to distinguish Keller by explaining that mandatory bar dues are justified for two reasons.  First, they serve “the State’s interest in regulating the legal profession and improving the quality of legal services,” and second, “[s]tates also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.”  But, in Friedrichs, the State of California has similarly argued that it has a strong interest in maintaining its current fair share system because fair share fees both “ensure[] that an exclusive bargaining representative has the resources necessary to discharge its responsibilities to all employees,” and “head[] off the resentment and conflict that an unfair allocation of the funding burden would predictably cause among employees, which could otherwise present a serious workplace problem for public employers.”  Thus, if the plaintiffs in Friedrichs are to prevail, the Court must explain why it accepted the State of California’s judgment in Keller while rejecting a similar judgment here.

At the oral argument, Justice Kagan pressed Carvin about the similarities between bar associations and public employee unions.  She pointed out that bar associations often take positions on public policy issues, and that not all lawyers agree with those positions.  Justice Kagan asked, “Do you think bar associations do … nothing that … members of the bar could disagree with and find hostile to their views?”  Here’s where Carvin became especially slippery.  He responded, “If they do, and if it’s not germane to lawyer ethics or service, then, by definition, it’s a violation of Keller.”  But, this answer totally sidestepped the question.  The fact is that after Keller, state bars are still free to use mandatory dues to weigh in on a wide variety issues that clearly involve important public policy questions.  For instance, I personally think that lawyers who are licensed in one state should be able to practice in other states in much the same way that drivers who are licensed in one state are allowed to drive in other states.  But, many state bars have established rules that impede out-of-state lawyers from easily operating across state lines.  In fact, many issues that fall under the heading of “lawyer ethics” actually involve significant public policy questions.  These include questions such as when a lawyer may reveal information that a client has disclosed to him (e.g. is it unethical for a lawyer to act as a whistleblower?); whether lawyers may pay referral fees to non-lawyers; whether non-lawyers may provide services that have traditionally been performed by lawyers; and whether there should be restrictions on a lawyer’s ability to solicit clients.

If the Supreme Court overturns Abood, it is not clear how States could continue to require lawyers to pay dues to State Bars.  Clearly much of what State bars do to regulate the legal profession involves questions of public policy.  And just as some teachers may disagree with the union’s position on teacher tenure or class size, some lawyers disagree with the bar association’s position on multi-jurisdictional practice or referral fees.  If all fees paid by teachers to union must be purely voluntary, then why shouldn’t the same rule apply to lawyers?