A. The Peculiar Institution
The unified bar—wherein lawyers are required to join the state bar association as a precondition to obtaining and maintaining a license to practice law—is a system of organ-ization unique to lawyers. No other profession, in Michigan or any other state, is organized or has ever seriously considered organizing itself along similar lines.
Though states routinely license a wide variety of occupations and professions, and often require the payment of an annual licensing fee by those practicing within the profession, forced membership in an association is unknown outside the bar. Doctors are not required to join the medical society, nor dentists the dental association. CPAs, veterinarians, and architects are free to join, or not to join, their respective professional organizations. The same is true with other licensed professions and occupations.
Indeed, the very term "unified bar" is misleading. A better term is "compulsory bar," as indicated by the fact that the alternative to the unified bar is not referred to as the "divided bar," but as the "voluntary bar." There is nothing to suggest that lawyers in compulsory bar states are any more "unified" than their counterparts in voluntary bar states, whether one speaks in terms of practice, reputation, beliefs, goals, needs, or abilities. Indeed, one can muster considerable support for the proposition that, in compulsory bar states, forced membership in the "unified" bar is itself the single most divisive issue in the profession.15
This report will use the terms "compulsory bar" and "unified bar" interchangeably. The reader should keep in mind that the incantation of the term "unified" brings no magical unity of interests or beliefs to the profession. The fundamental question is not whether the bar should be "unified," but whether membership in the bar should be voluntary or coerced.
B. Three Visions of the Bar
The confusion over labels is not insignificant, as it both symbolizes and confuses a long-running debate over the legal status of the unified bar. In fact, much of the debate over the merits, morality, and constitutionality of the unified bar stems from three distinct, and often conflicting, visions of the bar: the bar as private association, the bar as a state agency, and the bar as a professional union.16
The common historical vision of the unified bar is that of a private association, operating no differently from the voluntary bar associations that existed in most states prior to unification, and which continue to exist in the 19 states that have not adopted a unified bar. During the period from 1920 through 1950, when most state bars were unified, it seems to have been the unquestioned assumption of leaders of the unification movement that the bar would continue to function as a private association, despite invoking the coercive power of the state to force membership and extract dues from reluctant colleagues.17
Bar leaders in unified states have generally operated their associations in the same manner as voluntary bars, offering member benefit programs such as insurance and car rental discounts, a member's magazine, and an active lobbying effort aimed at legislation affecting the association's members. Compulsory bars have jealously guarded their independence by resisting legislative or judicial encroachments into the bar's internal and external operations.
At the same time, leaders of the unified bar have often been quick to invoke a second model of the unified bar—that of a public agency—when convenient. In this vision, the unified bar is a state agency, essentially no different from the State Board of Education or any other agency, except that its officers are elected by a singular class—lawyers—who also pay a special tax to support the agency's operations. The ostensible purpose of the agency is to regulate the legal profession and serve the legislature as a resource for information and advice on legal issues. This model is quite different from that of a private, voluntary organization, for it implies significant oversight of bar operations and budgets by the legislature and governor, with managerial accountability to the public at large.
In accordance with the public agency model, unified state bars have in recent years been under pressure to add lay persons to their governing boards. Such moves, when successful, may hinder the unified bar's ability to look after its members' direct interests.18 Even when states have not required the presence of "public" representatives on the unified bar's governing body, the trend has been for increased interference in state bar affairs by state supreme courts and legislatures.19
In Michigan, for example, the State Bar has found its role in the management and budgeting of the Attorney Grievance Commission and Attorney Discipline Board cut back substantially by the Michigan Supreme Court.20
Such increased oversight has not generally been welcomed by compulsory bars, which correctly view closer legislative and judicial oversight as limiting their autonomy.
To members of the bar seeking to preserve their institutional independence, the ultimate danger of the public agency model is the creation of a compulsory bar not controlled by lawyers, such as existed in Louisiana under Governor Huey Long in the 1930s. There, lawyers were forced to join a unified bar with a governing board elected by the public and not explicitly limited to lawyers.21
Therefore, although unified bar leaders have frequently invoked the state agency model to advance the bar's immediate interests or to quash threats to the bar's mandatory status-usually a dissident lawyer who challenges the state's right to force membership in the association as a pre-condition of practice—once the immediate need or threat has passed, the unified bar reverts to the vision of itself as a private organization.22
Between these two visions of a unified bar lies yet a third view, which sees the unified bar as analogous to a public employees' labor union. In this view, the state bar exists to serve its members, who prefer self-regulation to state regulation. Membership is mandated in order to prevent the "free rider" problem, in which some lawyers benefit from the services of the bar, yet avoid paying for those services. However, because membership is coerced, the state must periodically intervene to protect the rights of dissenting bar members from abuse by the majority of the organization. This conception of the unified bar creates different public policy ramifications than either the private association or state agency conceptions, ramifications which are explored more fully in the sections that follow.
These conflicting visions of the unified bar—private association, state agency, and union-have created a great deal of confusion over the rights of states to force membership, the authority of unified bars to engage in various activities, especially political activities, and the rights of dissenting lawyers to withhold dues from the bar. Perhaps inexorably, or possibly because the primary players are lawyers, these issues have regularly ended up in court.
In court, the confusion over the proper vision of the unified bar has hindered efforts to answer these questions. The doctrine which has only recently emerged from the courts—that the unified bar should be treated in a manner analogous to a labor union—both exposes and exacerbates the inconsistent goals and images of the unified bar. Under this doctrine, if the unified bar ever had any advantage over a voluntary association—either to lawyers or to the public—it no longer does.
15For a sampling of the disunity within the Michigan State Bar, see e.g. Robert Epstein, Opt-out of State Bar Lobbying Effort is this Attorney's Choice, Mich. L. W., March 4, 1991 (letter to the editor) ("What makes [State Bar leaders] think that the legislative activities of the State Bar . . . are representative of the feelings of the bar?"); Michael Franck, Lawyers Better-Served When State Bar Active in Legislature, Mich. L. W. March 11, 1991 ("I think it hardly likely that anyone believes that positions advocated by the State Bar of Michigan ... are universally shared by every one of its members ... ); Marcia McBrien, Debate Continues: Mandatory or Voluntary Bar for Michigan, Mich. L. W., April 5, 1993; Marcia McBrien, Poll Respondents Express Dissatisfaction With Bar, Mich. L. W., April 19, 1993. See also Falk v. State Bar of Mich., 411 Mich 63, 305 NW2d 201 (1981)(Falk 1); Falk v. State Bar of Mich., 418 Mich 270, 342 NW2d 504 (1983)(Falk 11). For a more general account, see Theodore J. Schneyer, The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case, 1983 Am B Found Res J 1, 1-4 (1983).
16It is beyond the scope of this study to provide more than the briefest description of these competing views. For readers interested in an excellent, detailed discussion of the three models, and the policy implications which flow from each, see Schneyer, supra n. 1, at 47-49. The brief description which follows draws substantially from Professor Schneyer's account.
17Schneyer, supra n. 1 at 46.
18Schneyer, supra n. 1 at 68-72
19Id. at 72-75.
20Michael Franck, Crisis and Opportunity Confront the State Bar, 72 Mich B J at 272 (March 1993).
21A more conventional unified bar was established after Long's death. Schneyer, supra n. 1 at 44.
22Compare the position of the Michigan State Bar in Falk 1, 305 NW2d at 214 ("The State Bar responds that ... [it] is rather a `public body corporate' that operates as a public or state agency"), with quite literally, any issue of the Michigan Bar Journal and most pronouncements of Michigan State Bar leaders, which routinely refer to the bar as an "organization" rather than an "agency," lawyers as "members," and the membership fee as "dues" rather than a tax or licensing fee. The Michigan State Bar maintains a "Membership Services Department," and provides such "services" to members as a regular journal and member benefit programs such as insurance and discounts. As one commentator has noted, these are "the stock in trade of private association." Schneyer, supra n. 1 at 75. Meetings of the State Bar's Representative Assembly are riddled with references to "protecting the profession" and "speaking for the membership" in the legislature. See e.g. Marcia McBrien, Representative Assembly Approves Dues Bifurcation, Establishes 1994 Bar Dues, Mich. L. W., May 3, 1993.