Law & Principles, Judicial Reform
Mandatory bar membership raises free-speech concerns
February 25, 2020
For decades, Oklahoma attorneys have not been allowed to practice law unless they join the Oklahoma Bar Association. Due to a recent U.S. Supreme Court ruling regarding free speech and the right of association, a Senate committee has voted to end that mandate.
Senate Bill 1404, by Sen. Nathan Dahm, would make attorney membership in the Oklahoma Bar Association voluntary.
“Not only do I have a problem with forced, mandatory compulsion to be a part of an association, the Supreme Court has expressed concern with that in the Janus decision,” said Dahm, R-Broken Arrow.
He noted 19 states do not require attorneys to join their state’s bar association.
In its decision, Janus v. American Federation of State, County, and Municipal Employees, the U.S. Supreme Court held, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”
While that case was not focused on bar associations, Dahm said the principles of the ruling apply.
However, Sen. Michael Brooks said SB 1404 simply shifted the mandate from requiring attorneys to pay dues to the Oklahoma Bar Association to requiring them to pay fees to the Oklahoma Supreme Court to cover the cost of continuing legal education and other services.
“I think you have a distinction without a difference,” said Brooks, D-Oklahoma City.
Senate Democratic Leader Kay Floyd of Oklahoma City said the Oklahoma Bar Association “is an arm of the Supreme Court and it was created by the Supreme Court.”
“The court has already done what you suggest the court needs to do, and that is created an entity to oversee discipline and mediation and continuing education,” Floyd said.
But Dahm said the shift would remove the free-speech problems created by mandatory membership in the Oklahoma Bar Association.
“One reason that the Supreme Court has weighed in on this is because many of these associations do not solely use that fee for the administrative purposes of continuing education or other things,” Dahm said. “They will use those fees for other, political purposes that the member of that organization may not agree with, so they’re effectively being forced to pay out of their own pocket money to support a cause that they might not agree with, which the Supreme Court has issued as a First Amendment violation, whereas if the money was solely going to the court, the court would not be involved in that.”
A lawsuit filed in federal court is currently challenging Oklahoma’s requirement that attorneys join the Oklahoma Bar Association as a condition of licensure. That lawsuit notes the Oklahoma Bar Association has taken numerous political stances that may not be shared by member attorneys, including opposing lawsuit reform and opposing reform of the Oklahoma Judicial Nomination Commission.
The lawsuit notes the bar association also “uses mandatory member dues to publish political and ideological speech in its Oklahoma Bar Journal publication,” including articles that claimed the U.S. Supreme Court’s free-speech rulings have changed the United States to “a government of the corporations, by the bureaucrats, for the money,” an article claiming political action committees “threaten to corrupt the political process,” and an article attacking the state’s oil-and-gas industry.
Sen. Julie Daniels, R-Bartlesville, noted most professions are not required to join the equivalent of the Oklahoma Bar Association, pointing out that doctors do not have to join the Oklahoma Medical Association to practice medicine in Oklahoma, and the same thing holds true for dentists, accountants, and engineers.
SB 1404 passed the Senate Judiciary Committee on an 8-3 vote that broke along party lines with Democrats in opposition.