Oklahoma lawyers – at least those who make a living doing lawyerly things – are currently required to join the Oklahoma Bar Association (OBA). However, recent developments in legal challenges to various mandatory bar associations are likely to shake up this arrangement. The legislature should be ready to react to these changes in the next couple of years, as it seems likely that Oklahoma’s scheme will be held unconstitutional. Better yet, the legislature should take the initiative and proactively reform the OBA next session.
The requirement to join the bar creates tension for several reasons. Aspiring lawyers, like other professionals, don’t want to jump through a bunch of hoops just so they can practice their trade. The OBA’s hoops are more burdensome than most, but this general arrangement is fairly common among licensed professions.
The tradeoff with mandatory licensing is that you can charge more for your services than you could if your profession was open to everyone. You’re joining a cartel. This is why so many trade associations support licensing. Often, when licensing is enacted, longtime practitioners are grandfathered in, so there is no cost to them, only increased profits. Once new members do jump through all the hoops, they want to ensure that they too can benefit from cartel membership. Bad for consumers, bad for applicants, but good for the existing members who control the system.
But lawyers in 30 states have a further complaint, and it is this objection that may soon change the OBA. In these states, lawyers are not only forced to get a license to practice, they are also forced to join their state bar association, which does more than merely regulate the legal profession. In many of these states the Bar serves a dual role: regulator of, and lobbyist on behalf of, lawyers. In fulfilling these dual roles, the Bar tends to advocate for the preferred political policies of the majority of its members. This would be fine if it was a private, voluntary organization. But remember, lawyers are required to join the bar if they want to work as lawyers. And the Bar is operating as an arm of, or at least an adjunct to, the state.
This raises multiple constitutional issues. The first is freedom of speech. Should lawyers be forced to subsidize speech with which they disagree? The Supreme Court long ago held that forcing lawyers to pay to join a mandatory bar association does not violate their first amendment rights if the dues are used for purposes germane to regulating the practice of law and improving the quality of legal services in the state.
Right now, a bar association undertaking these kinds of regulations is also allowed to engage in political activities outside this main purpose, as long as there is a way for attorneys to opt out of paying for speech that is “non-germane” to regulating lawyers. Previously, that standard applied to unions covering public employees like teachers and police, but a 2018 opinion reversed this ruling.
Unfortunately, the Supreme Court did not extend that decision to cover bar associations. Because their previous ruling spoke directly to bar associations, and the new ruling only raises questions about the constitutionality of mandatory bar associations, lower courts have been forced to uphold bar association arrangements until the high court rules directly on the issue. As the 10th Circuit recently explained in a challenge to the OBA, “Although Janus suggests Keller is vulnerable to reversal by the Supreme Court, at this time Keller remains binding precedent on this court.”
The second and, so far, more successful claim is freedom of association. No one should have to join an organization that pursues goals with which they disagree. This right is closely associated with the freedom of speech – or the freedom not to speak, but it is slightly different. If you join an association, you are lending your name to their cause. This is almost identical to the speech claim. But where speech is a one-way street, association works both ways. Members lend their name to the association’s cause, but membership also changes the way they are seen. When you meet a member of Mensa, you view them differently. When you meet a member of a church, civic organization, or political committee, your perception of that person is colored by the knowledge that they belong to that particular group. Each person has an inherent right to choose the groups with which they are associated.
The Supreme Court has never ruled directly on whether mandatory bar associations violate the freedom of association, which means circuit courts are free to determine where the high court is likely to go next, rather than rigidly looking at where it has been. In the last two weeks, the 10th Circuit has allowed an association claim against the OBA to move forward in the lower court, while the 5th Circuit decided that lawyers objecting to the Texas and Louisiana bar associations have already shown enough to win their claims. In addition, 1889 has filed a friend-of-the-court brief urging the Supreme Court to review a challenge to the Oregon State Bar on similar grounds. Given the recent decisions and the court’s makeup, it seems likely that they will agree to hear one or more of these cases, and decide in favor of the challenging lawyers.
Why should non-lawyers care? Because the OBA plays an outsized role in state politics. And bar associations tend to be significantly to the left of the general population. Freeing lawyers who do not fit this profile from being forced to join undoes some of this harm, to the benefit of the average Oklahoman. It may also force the legislature to rethink the Judicial Nominating Commission. Perhaps they will even refer the process to a new vote of the public, allowing us to switch to the federal system of selecting judges.
Oklahoma has one more twist that even the other 29 mandatory bar association states lack: our legislature didn’t authorize the current scheme. In fact, they essentially repealed an almost-identical scheme in 1939. Shortly thereafter, the Oklahoma Supreme Court stepped in. Using their inherent common law power to say who can practice law in their courts, they also seized legislative power over the entire legal profession. The legislature did nothing. Now is the time for the legislature to correct its decades of indifference and inaction.
Mike Davis is a Research Fellow at 1889 Institute. He can be reached at firstname.lastname@example.org.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.