Brief and Manifesto Against A Mandatory State Bar:
A Mandatory Bar Is A Monopoly Unworthy to Advance Justice
by Gerald R. Thompson & Kerry Lee Morgan
C. Larger Considerations of the Freedom of the Mind (State Bar Like A Religion, con’t)
Granted, a reasonable person might be inclined to scoff at the preceding analysis, since there will be a very strong presumption that the State Bar of Michigan is, as all integrated bars are presumed to be, a completely secular organization. However, Thomas Jefferson was completely serious, when he stated in his Bill for Establishing Religious Freedom (1779):
the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith [beliefs] of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions [belief systems] over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical…16
One can plainly see, with two minor word substitutions, that Jefferson’s comments apply equally well to an integrated bar organization such as the State Bar of Michigan, as it does to any religious institution. The assumption Jefferson starts with is that the human mind is free, and this forms the basis of religious liberty. Yet, the human mind has more than just religious thoughts, and the freedom of the mind extends well beyond the realm of religion. So the foundational principle is that all thoughts, all beliefs, and all opinions, are equally free – and it matters not what the content of those thoughts may be, or whether they are religious or secular.
James Madison can be quoted to the same effect.
The [beliefs] then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of [beliefs], no man’s right is abridged by the institution of Civil Society, and that [belief] is wholly exempt from its cognizance.17
We know very well that nearly everyone who litigates the issue of a compulsory bar quotes or references Jefferson and Madison, as do many judges in their opinions. Except we cannot help but conclude that judges generally do not appreciate what these words actually mean. Specifically, we refer to the phrase, “exempt from its cognizance” which is, in root, a jurisdictional statement. It is a statement that civil governments, including state supreme courts and state bar organizations, have no authority to prescribe the beliefs or opinions of lawyers, even as to matters of professional ethics, pro bono representation, diversity and inclusion, IOLTA trust accounts, or what it means to further the interests of justice.
Accordingly, every lawyer is, and ought to be, free to adopt their own code of ethics, to represent who they want under terms accepted by willing clients, and to define justice in a manner each lawyer sees fit. This freedom, being granted by God, and for which an account may be required by none other than God alone, is not, and cannot be, subject to any form of judicial balancing, nor can it be outweighed, superseded or overruled by any state interest. Because, in simplest terms, any authority derived from God always trumps any authority wielded by men, and never the reverse. The American founders knew this, and wrote this principle into our foundational laws. Foolish are they who, over the years, have suppressed this principle by their opinions.
Lawyers are typically taught that certain types of speech and thoughts are generally entitled to a greater protection than others, namely, religious and political speech and thoughts. Commercial/business/professional beliefs and opinions, not so much. Undoubtedly, any decent law clerk could generate numerous case citations to this effect in minutes. However, this is fundamentally a lie. The Creator, who made the human mind, never made a differentiation between religious, political, commercial and other types of speech or thoughts.
Just because the framers had to deal with particularly pressing religious and political issues of their time does not create a limitation on future generations. The concepts expressed by the framers are not limited to their personal experiences. All thoughts are free, all beliefs are part of the duties owed to God and not to any person or group of people, and all opinions are beyond the scope of any state bar to intrude upon, teach, or enforce. It is not for a state bar organization to tell any lawyer what to think, or what we should think about pro bono work, diversity in the workplace, justice for the poor and underserved, or remedying this or that injustice. Bar organizations should stop trying to get into lawyers’ heads and push the legal profession in the direction they want.
All thoughts, beliefs and opinions are equally sacred, including without limitation all commercial, business, professional and legal thoughts. The people never delegated to the state any authority to tell them what to think. But that is exactly what the State Bar of Michigan is doing – telling its member lawyers what to think. And it should stop.
Accordingly, the State Bar of Michigan should be disestablished by making it a purely voluntary association. Only in this way, can the freedom of the mind guaranteed to all lawyers in our foundational laws be preserved.
A. The Legal Profession As A Cartel
W. Clark Durant, chairman of the Legal Services Corporation’s board of governors, stated at the mid-winter meeting of the American Bar Association (A.B.A.) in February 1987:
The greatest barrier to widely dispersed low-cost dispute resolution services for the poor, and for all people, could very well be the laws protecting our profession. They make it a cartel. Like any such laws, they limit or distort supply; they increase prices; and they create dislocations in the marketplace.
* * *
The legal monopoly rests on two major pillars. The first are laws that set aside specific work exclusively for lawyers. Anyone else who performs “lawyer’s work” may be prosecuted for the unauthorized practice of law [UPL statutes]. The second is a series of restrictions on how one may become a lawyer. These restrictions are really barriers to competition, not guardians of competence.18
When Durant was speaking of a cartel, he was of course referring to the legal profession as a whole, that is, licensed attorneys as a group. In a cartel, only the members of the specially entitled club are allowed to engage in the business of the cartel. That is, in fact, the chief purpose of every UPL statute – to keep all persons who are not members of the special club from engaging in the business of the cartel – in this case, the legal profession. UPL statutes are no different, in reality, from laws restricting the number of taxicab drivers in a locality, or which limit the number of liquor licenses issued in a given area. And despite the manifold claims that such laws are enacted to “protect the public,” they are really there, as Durant said, to stifle competition.
Of course, UPL statutes do not benefit an integrated bar organization directly, as the focus of such statutes are lawyers as a group, not the bar organization as an organization. Nonetheless, bar organizations are the primary advocates for UPL statutes nationwide, and as luck would have it, they are also the chief enforcers of UPL statutes. Thus, the interests of an integrated bar and the professional legal cartel become intertwined, and as Durant pointed out, become the pillars of the “legal monopoly.”
Strictly speaking, no licensed attorney enjoys a legal monopoly, because he or she has no way to prevent new attorneys from being licensed, all of whom have the potential to cut into their market share. They are simply members of the cartel. No, the legal monopoly is the province of the mandatory State Bar, which has the exclusive legal right (under the umbrella of the state supreme court) to license, regulate, discipline and educate all the lawyers in a given state. New attorneys can come, and old attorneys can go, but the integrated bar as an organization itself never has to share with anyone, never has to fear replacement, and never has to retire from service. Its privilege is exclusive, and is cemented into place by law. Its institutional goal is immortality – status quo is just fine, and don’t ever let it change.
B. The Historic Understanding Of A Monopoly
Now, in using this term monopoly, we are specifically using it in the historic sense, and not as that term has been corrupted in modern usage. In other words, we refer to monopolies as they were understood under the English common law and among the early American states – not by the way Congress has more recently defined the law of antitrust. For example, the Sherman Anti-Trust Act states: “Every contract, combination . . . or conspiracy, in restraint of trade or commerce . . . is declared to be illegal.”19 Similarly, the Clayton Anti-Trust Act makes it illegal for businesses to charge different customers different prices for the same goods or services, or to acquire another business whenever the effect is to lessen competition or to create a monopoly.20 Essentially, these laws prohibit certain business contracts entered into by private parties.
But, in Blackstone’s day, and in the formative years of American commerce, a monopoly meant only one thing: an exclusive privilege to engage in business which was granted by the king. In other words, every monopoly was created by the civil ruler. A monopoly had nothing to do with private business practices, but was a civil privilege, and therefore, an equality issue. In the worldview of the founders, private parties could “corner the market,” but they could never create a monopoly. Thus, according to Blackstone:
MONOPOLIES are … a license or privilege allowed by the king for the sole buying and selling, making, working, or using, of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.21
The Blackstonian understanding of monopolies was carried over to America in some of the early state constitutions.
That perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.22
That monopolies are odious, contrary to the spirit of a free government, and the principles of commerce; and ought not to be suffered.23
Modern scholars define a monopoly based upon economic facts, that is, the perceivable practice of market participants. However, our nation’s founders understood a monopoly as a question of law, that is, whether a person was legally entitled to enter the marketplace. If, in fact, only one seller brought his wares to the market, that was acceptable, so long as other sellers were able to act similarly, but simply chose not to do so, or were unable to do so because of their own economic limitations. If, however, only one seller had the exclusive legal right to sell his wares at the market, even if no one else wanted to sell their wares in the same market at the same time, a monopoly existed, and was unlawful. Thus, the definition of a monopoly was based on what the government did, not on what the so-called monopolist did. Let us consider the State Bar of Michigan in this light.
C. The Michigan State Bar As A “Unit of Government”
Michigan statutory law proclaims, “The establishment, maintenance, or use of a monopoly, or any attempt to establish a monopoly, of trade or commerce in a relevant market by any person, for the purpose of excluding or limiting competition or controlling, fixing, or maintaining prices, is unlawful.” MCL §445.773. It is wonderfully convenient, therefore, the Michigan Antitrust Reform Act (MCL §§445.771, et seq.) also expressly provides that all public corporations in the state are deemed to be a “unit of government” which are excluded from the provisions of the Act. MCL §445.771(d) and §445.774(3). And the State Bar of Michigan is made a public corporation by MCL §600.901.
So after declaring as a matter of public policy that a monopoly established by any person in Michigan is unlawful, the left hand immediately takes away what the right hand has given, and declares that all government-created monopolies are perfectly legal, simply because (and for no other reason) they have been created by the government. This is too profound an irony to be missed, in that historically, a monopoly was odious and unlawful because it was granted by the government. And thus, once again, the law that has stood for centuries of Anglo-American jurisprudence is overturned in a moment for convenience by people who did not know their own history.
But the decline of monopoly law is not for the convenience of lawyers, who are compelled against their wills to become a member of a unit of government, i.e., the State Bar of Michigan. Nor is it – really – for the convenience of the state, which is perfectly capable and has sufficient resources to license and regulate lawyers without any outside assistance, as it does with other professions and occupations. No, it is convenient only for the ruling aristocracy of the State Bar, because without their legal monopoly, their positions of power would be greatly diminished. They would have to fend on the merits of their own programs and goals to attract support, something they are unwilling to try absent the prop of coercion.
However, the exemption of the State Bar from the Michigan Antitrust Reform Act may not be as ironclad as it appears – at least in federal court. Although the issue of being a monopoly was not at issue in Keller, supra, the majority opinion noted, “the California Supreme Court in this case held that respondent’s status as a regulated state agency [the State Bar of California] exempted it from any constitutional constraints on the use of its dues.” In other words, California law regarded the State Bar as exempt from certain statutory requirements which would otherwise be applicable, because it was a “state agency.” This is conceptually no different than the State Bar of Michigan being regarded as a “unit of government” under Michigan law.
Yet, how did the U.S. Supreme Court consider that argument, as applied to federal constitutional questions?
Of course the Supreme Court of California is the final authority on the “governmental” status of the State Bar of California for purposes of state law. But its determination that respondent is a “government agency,” and therefore entitled to the treatment accorded a governor, a mayor, or a state tax commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question. The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as “governmental agencies.” Keller, supra, at 11.
The Keller court went on to specify why they reached this conclusion:
The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers. Keller, supra, at 13.
All of these same arguments can be applied to the State Bar of Michigan and its status under Michigan law. How convenient is it, that the state should form a State Bar, which is nothing more than a glorified advisory group performing no actual regulatory functions, then the State Bar should be exempt from the antitrust laws simply because they are deemed to be (in form only, not in substance), a “unit of government.” Fortunately, the U.S. Supreme Court has seen through this sleight of hand.
Besides, one may rightly ask – since when does a personal choice of profession compel a private citizen (who wishes to remain private) to be conscripted into government service as a member of a unit of government? Supposedly, people enlisted in public service are entitled to be compensated by the state. MCL §32.513. And after all, according to the State Bar, it serves a public function and is not merely a professional association formed for the benefit of its members. So, let’s take the State Bar at its word, and start computing a pay scale for all licensed lawyers for their services to the public, in keeping with other enlistees. Failure to pay lawyers for such services merely reinforces their status as a subservient class, hardly worthy of a noble profession.
To be sure, one can deny that lawyers, who are “officers of the courts,” have been conscripted into public service against their wills. One can deny that they are entitled to state compensation for their public services. One can deny that licensed lawyers are being treated as a subservient class of citizens. One can even take those denials and have a law clerk place numerous string quotations in support of them. But attorney challenges to an integrated bar are not slowing down, they are just picking up steam. Just consider, for a moment, why that is.
Accordingly, the State Bar of Michigan should be disestablished by making it a purely voluntary association.
There are, of course, many legal precedents regarding the legality and constitutionality of an integrated bar organization. This is not a case of first impression. We are well aware of precedents built on erroneous foundations and actively urge people to disregard them and their foundations. We are not here seeking judicial consistency. This is not a time to circle the wagons and affirm solidarity with brothers and sisters on the bench in years gone by. We are seeking justice based on true and universal principles of human freedom. We oppose principles of compulsion in association. There is no virtue in perpetuating bad law, poorly reasoned opinions, and onerous precedents just because that is how it has always been done, forever and ever, amen. We are seeking liberty, and that quest can never be eliminated so long as the human spirit remains.
For it is an established rule to abide by former precedents . . . Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more, if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law . . .. So that the law and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.24
But I wish not to be understood to press too strongly the doctrine of stare decisis . . .. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law . . ..25
It should always be kept freshly in mind, that the judicial oath of office (as it pertains to the State of Michigan) commits each judge to be faithful to the federal and state constitutions as the sole guide of proper judgment. There is absolutely no judicial oath taken or implied to abide by former precedents which are, after all, merely the opinions of other judges purportedly based on those Constitutions. If this is true in fact, then reexamination of those opinions to affirm that truth should pose no objection. What is there to hide? Prior judicial opinions are not divine edicts coming down from on high. They are not even the supreme law of the land despite what they may claim. They are only entitled to the respect which their reasoning deserves.
A voluntary bar organizations is warranted as a matter of natural and fundamental rights. An involuntary bar organization is contrary to these rights. Forced organizational associations are contrary to human nature and natural right because every person is born free and that freedom includes the right to choose what organizations if any, an attorney shall associate with or contribute his or her time or sums of money for the furtherance of its ideas.
Absent wrongful conduct, Michigan attorneys may not be compelled to forfeit these rights. The state may allege compelling interests and these may serve other regulatory purposes undertaken by the Michigan Supreme Court, but no such interest reaches or justifies compelling organizational membership contrary to a licensee’s rights. All compelling interests of the state can be met without forming an integrated bar.
Application of Keller’s free speech test must be reexamined. All of the activities of the State Bar of Michigan are based on choosing one viewpoint over another. They are all ideologically driven as is the manner of any organization. They all espouse a particular viewpoint. Compulsory membership and payment of dues are compelled speech activities by an integrated bar which impermissibly trades on the reputation and rights of its members. For these reasons compulsion in organizational association is contrary to the laws of nature and of nature’s God, the natural rights of attorneys, and lacking any compelling rational to override even a fundamental right of association or of speech.
We like to think of ourselves as having a more free and open society compared to our ancestors centuries ago. We congratulate ourselves on being more “highly evolved.” But in this we are deluded. We have merely perfected the use of language to conceal legal and economic bondage and wrap it in a cloak of benefitting the public interest. All of which makes the elite feel good about themselves as they hold on tightly to their power over the little people, that is, John and Jane Doe, Esq., licensed attorneys at law. The “little people,” who are coerced members of the integrated bar – coerced by the law, and ultimately by the point of the sword.
We propose a simple and straightforward solution. Namely, disestablish the integrated bar organization. Leave the state to perform a straight-up licensing function, performing only those licensing-related activities which are performed by the state for physicians, other professions and the various occupations. Make all bar organizations strictly voluntary.
This simple solution is amazingly one-size-fits-all.
1. It avoids trampling the rights of free association by making the bar organization voluntary.
2. It fulfills the full extent of the state’s compelling interest in licensing attorneys.
3. It avoids involving licensed attorneys in free speech and/or advocacy activities with which they disagree and choose not to support financially.
4. It removes the bar organization from the position of using the force of law to impose a system of belief regarding social, legal and professional issues to dissenting lawyers.
5. It prevents the bar organization from becoming an odious monopoly.
Courts are supposed to uphold the rights of the people, to be guardians of the law, and to hold back the oppressive tendencies of government officials and elitists who, pretending to “serve” the public interest, actually just want to maintain and increase their preferred way of living and advocacy at another’s compelled expense. Is there a court that will see the true law and follow it?