December 11, 2013
By Rita Fuerst Adams, National Executive Director, National Parents Organization
The Nebraska Supreme Court prohibits Nebraska State Bar Association from using mandatory dues for anything other than regulation of the legal profession. Thus it may not use mandatory dues for lobbying. Regulation of the profession is defined as:
- admitting qualified applicants to membership in the Bar Association,
- maintaining the records of membership,
- enforcing the ethical rules governing the Bar Association’s members,
- regulating the mandate of continuing legal education,
- maintaining records of trust fund requirements for lawyers, and
- pursuing those who engage in the unauthorized practice of law.
As many of our members know, the state bar associations often are opposed to reforming family law. For as many attorneys National Parents Organization has working with us to make shared parenting the norm, their state bar associations are still most often against preserving the bond between parents and children. A lot of our progress has been made with the time and talents of attorneys who, as volunteers, serve our state affiliates by crafting model legislation, reviewing proposed legislation, and serving on task forces.
The move to limit the Nebraska State Bar Association’s ability to use dues for lobbying started with Senator Scott Lautenbaugh, Esq., who sued the Nebraska State Bar Association in federal court last October alleging violations of the United States Constitution and federal civil rights laws. Mr. Lautenbaugh believes, because he is required to be a member of the State Bar Association, the use of his dues for political and ideological purposes constitutes government-compelled speech and violates his First and Fourteenth Amendment rights. The lawsuit sought to have the Nebraska State Bar Association's lobbying and dues procedures declared unconstitutional.
Slightly more than half of the states have a mandatory, integrated, or unified bar. In making this change in Nebraska, the Supreme Court referenced Florida and Michigan both mandatory bar states. Other mandatory bar states are: Alabama, Alaska, Arizona, California, Florida, Georgia, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington State, West Virginia, Wisconsin, and Wyoming. Also, the District of Columbia, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands.
In some states, like Wisconsin, the mandatory membership requirement is implemented through an order of the state supreme court, which can be revoked or canceled at any time at the court's discretion. In others, like Oregon, the state legislature passed a law and created a government agency. California went farther than any other state and wrote the State Bar of California into its constitution.
A voluntary bar association is a private organization of lawyers. The membership can extend to people interested in the goals and purpose of the Association. Each Association chooses its own purposes, including social, educational, and lobbying functions, but does not regulate the practice of law or admit lawyers to practice. There is a statewide voluntary bar association in every state that has no mandatory or integrated bar association.
Our concern about the Supreme Court using Florida as an example is both the most recent shared parenting and alimony reform that was not signed by the Governor at the prodding of the Florida Bar Association and the rules that govern its lobbying activities as provided on the Florida Bar Association’s website.
“The test as to whether or not The Florida Bar should engage in a particular activity is not whether the activity is "political" in nature or directly connected with the administration of justice. The true test is whether the matter is of great public importance, and whether lawyers, because of their training and experience, are especially fitted to evaluate the same. If a matter vitally affects the public, and lawyers are peculiarly fitted to be the evaluators, it is not only the right but the duty of the Bar as a professional organization to make such evaluation and advise the public of its conclusions.”
“In one footnote, the court opinion indicated that acceptable areas for bar lobbying would include the following topics: (1) questions concerning the regulation of attorneys; (2) budget appropriations for the judiciary and legal aid; (3) proposed changes in litigation procedures; (4) regulation of attorneys' client trust accounts; and (5) law school and bar admission standards. The Judicial Council recommended that, when a matter appears to fall outside the five specifically identified areas, the following criteria be used to determine whether the bar could become actively involved in its advocacy: (1) that the issue be recognized as being of great public interest; (2) that lawyers are especially suited by their training and experience to evaluate and explain the issue; and (3) the subject matter affects the rights of those likely to come into contact with the judicial system. “
So, what can’t the Florida Bar lobby on?
In addition to the argument that Senator Lautenbaugh made regarding “government compelled speech,” dues paid by business taxpayers that are used by their associations for lobbying may not be a deductible business expense. In 1993, Congress took away the right of business taxpayers to deduct as a business expense their payments for lobbying at the state and federal level. Many lobbying and political activities are conducted by nonprofit trade and professional associations using dues income from business members.
Starting in 1994, these associations are now required to tell their members what portion of their dues is used for lobbying and political purposes, and to warn them not to take that portion as a deductible business expense. If the association does not do so it must pay a proxy tax on all of its political and lobbying expenditures. This may be imposed on 501(c)(4) social welfare organization, 501(c)(5) agricultural groups, and 501(c)(6) trade and professional associations. This classification of trade and professional associations includes many bar associations.