Bar Associations Are Much More Like Unions Than Friedrichs’ Attorney Acknowledged

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.

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