Brief and Manifesto Against A Mandatory State Bar:
All State Bar Activities Are Ideological and Like a Religion
by Gerald R. Thompson & Kerry Lee Morgan
The concept of an integrated bar organization has commonly come under attack on the basis of free speech rights. The seminal case on the matter in recent years has been Keller v. State Bar of California, supra. Plaintiffs in the instant action have argued Keller has been conceptually overruled in Janus v. AFSCME, supra. Application of the Keller test, however, is fundamentally flawed and should be reexamined for two reasons.
First, the legacy of Keller, whether intended or not, is that only some of a typical integrated bar organization’s activities are perceived as being advocacy or ideological. While the stated purpose, values and rules of the bar have the appearance of neutrality, their applications are all ideological. They are expressions of a particular opinion or viewpoint concerning the profession, the nature of justice, and what it means to protect the public.
Second, the nature of the harm inflicted on unwilling members of an integrated bar by its speech and advocacy activities is not limited to payment of bar dues. Certainly, the harm inflicted may be economic in part or indirectly, but in any event it has no relation to the amount or percentage of bar dues paid by the unwilling attorney. Rather, the harm is defamatory in nature, forcibly making an association in the public mind between the unwilling attorney and the views espoused by the bar organization.
A. All of the Activities of the State Bar of Michigan are Ideologically Driven and Espouse a Particular Viewpoint
Recall how the State Bar of Michigan’s charge: it “shall aid in promoting improvements in the administration of justice … in improving relations between the legal profession and the public, and in promoting the interests of the legal profession.” One might imagine these grand objectives are pursued with cold neutrality, a detached disinterest, and the lack of a political agenda. Not so.
A quick survey of several key initiatives of the State Bar will demonstrate that the bar’s goals and programs reflect only one of a multitude of ideological options. For instance:
• The State Bar believes diversity and inclusion are “core values of the legal profession.” The Bars strategic plan, Goal 2, Strategy 4 declares its commitment to “Encouraging improved diversity and inclusion of the profession as a fundamental component of the public’s respect for the rule of law and confidence and trust in the justice system. The public’s respect for the rule of law and confidence and trust in the justice system, however, presents a different take. The public has said that “No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin.” Mich. Const. Art. 1, sec. 2.
The public does not use words like “diversity” or “inclusion.” The public uses words like “equal protection”, the prohibition of affirmative action or singling people out for special preference because of immutable characteristics. “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Mich. Const, Art 1, sec. 26. Equality, not preferences, affirmative action, diversity or inclusion are the public’s interest.
The point is that the state bar’s commitment to diversity and inclusion is well within the goal of a voluntary organization, but that is not to say they are free from ideology. It is certainly arrogant to claim that the bar also speaks en mass on behalf of the “the public’s respect for the rule of law and confidence and trust in the justice system.” The same is true when speaking on behalf of all Michigan lawyers. But arrogance is the liberty of every voluntary organization. It is not arrogance which is the problem. It is the demonstrably false claim that the bar is or can be ideologically bias free.
• The State Bar promotes the Martin Luther King Jr. Day of Service. In doing so, a quote from Reverend King serves as a rallying cry: “Life’s most persistent and urgent question is, what are you doing for others?” This quote was taken from a 1957 sermon of Dr. King’s. The assumption is that we all agree that there simply cannot be any divergence of opinion on what life’s most persistent and urgent question might be on “MLK day.”
But consider the viewpoint of another King: “In this meaningless life of mine I have seen both of these: the righteous perishing in their righteousness, and the wicked living long in their wickedness.” Observation of King Solomon, Ecclesiastes 7:15. Now there is a quote worthy of reflection for lawyers who represent clients and judges who hear and decide cases even on MLK day. It is not relevant if the bar adopts or does not adopt this viewpoint. The point is that the Bar’s commitment to weighing in on the meaning of life is neither universal nor neutral. There are many special days to celebrate great persons. The bar has chosen one to the exclusion of others. It represents a single point of view based on its own ideological assumptions in even choosing one day of service over another. While these assumptions may be suitable for a voluntary organization that generates voluntary support by like-minded contributors and members, this ideological perspective is not suitable for a compulsory one.
• The State Bar is a huge proponent of pro bono legal assistance. The Bar speaks with one voice – our compelled voice – in determining how best to serve the cause of justice and in setting the standard for how much time and money each lawyer should spend on charitable legal causes for the poor. Goal 2, Strategy 3 of its Strategic Plan declares the bar’s goal of “expanding opportunities for SBM members to participate in access to justice initiatives through traditional means including pro bono and by partnering with public service organizations, local and affinity bars.” This is all fine and well. Why is compulsory membership required, however, to achieve this ideological goal? Make no mistake. The bar is promoting specific ways it thinks Michigan attorneys should love their neighbors.
Isn’t that what donating legal time is about a form of loving one’s neighbor? Is this a compelling interest that lawyers be reminded to love their neighbor by freely giving their time and forgoing revenue elsewhere? The choice to voluntary give one’s time to pro bono as opposed to other non-legal activities is a matter of individual judgment. It may be objected that the obligation is not legally mandated (yet). But this is to simply state in other words, that the state has no compelling interest in the matter.
The point is that the state bar’s exaggerated sense of its own means of loving its neighbor by prodding its forced members to show love through pro bono activities is an ideological one, not options universally agreed upon as to how one should spend or donate their time. While these activities may be suitable for a voluntary organization provided it can garner support, it is not suitable for a compulsory one.
• The State Bar requires every lawyer to make an annual disclosure regarding the use, or non-use, of an IOLTA trust account in the practice of law, and of course requires their use under the Rules of Professional Conduct. Surely, at last, we have hit upon a completely neutral subject upon which no one can disagree? No. What of those lawyers and clients who would prefer – if only they had the comfortable liberty to do so – of arranging their business affairs according to the freedom of conscience God gave them? What if their natural rights were respected by a bar committed to that justice the justice of the Declaration of independence?
This survey is not intended to be exhaustive. We could examine everything the State Bar does, and find in every instance a particular viewpoint being espoused. And correspondingly, for every viewpoint advocated by the State Bar, there are many other viewpoints which are by definition excluded and precluded.
Despite the bar’s ideologically rife Strategic Plan, the Michigan Supreme Court has uncritically gone along with Keller’s artificial ideological line drawing. For instance, it provided in Administrative Order No. 2004-01, that “The State Bar of Michigan may use the mandatory dues of all members to review and analyze pending legislation.” Such activities, in the view of the Court, are non-ideological. How could it have escaped the Court that the legislature is by definition, a political branch of state government? Further, the legislative process is, by definition, a political process. Yet, the political process is very much driven by passions, conflicting interests, and above all, ideology.
Let us stop the charade. Everything the State Bar does or promotes is ideological and viewpoint driven. This court should apply the Keller test identifying ideological speech and find everything the bar undertakes is ideological speech. It should abandon the decision’s incomplete application of the test as an arbitrary line drawing exercise–indeed as an ideologically driven line drawing exercise. Application of the Keller test is itself an ideological effort to divide the activities of the integrated state bar organization into the ideological and non-ideological. Thus, all the activities of the State Bar, not merely some, violate the free speech rights of its members.
B. Speech Activities by an Integrated Bar Impermissibly Trade on the Reputation and Rights of Its Members
For the foregoing reasons, the case law focusing on whether lawyers must pay that portion of bar dues used to fund the advocacy, educational and other free speech activities of an integrated bar organization rather misses the whole point. More than bar dues are at stake. If that was all that was at stake, then a waiver of all bar dues would be in order since 100% of all bar activities promote ideologically driven objectives no matter how neutrally or persuasively worded.
The legal shortcoming, however, is more fundamental. Namely, funded or unfunded, the bar purports to speak in the name of all its members whenever it speaks. We are not merely quibbling about differences in opinions. When a bar organization speaks, it speaks with one voice. The Bar’s Strategic Plan speaks with one voice. Speaking on behalf of all its members in this way, the integrated bar attains not only credibility, but is also a leading voice among the legal profession. In this way, the integrated bar organization trades upon the reputation and integrity of all its members, even those (and especially those) who differ from, disagree with and simply have no position regarding the positions voiced by the bar organization.
The bar organization by its very nature always speaks as the voice of unity (that is, the unity of the licensed lawyers), even when the number of opinions held by lawyer members invariably equals the number of lawyers. And for some lawyers, being compulsorily associated with the views espoused by the State Bar ranges from being a farce, to being repugnant.
Consider, for a moment, that instead of being an integrated bar, the State Bar of Michigan was entirely voluntary, and roughly 40% of licensed attorneys in the state were members. In that case, the bar organization could, at most, ever only speak for a minority of lawyers in the state. Its credibility would be subject to challenge. It might or might not be a leading voice on issues it addresses, but it could never be more than a plurality opinion among lawyers. Differing and dissenting opinions would abound. Unity within the profession would never be plausible. Real diversity could actually exist, not merely the state bar controlled version of diversity.
Consider also that the State Bar of Michigan, like all integrated bars, promotes the view that the bar organization provides value to its members. The reverse, however, is just as true. It should never have been a question of whether attorneys should pay that portion of bar dues used to fund the advocacy, educational and other free speech activities of an integrated bar organization. Rather, the question ought to be: Why isn’t the bar organization paying its members for the privilege of trading on their good names (without their consent) in order to advance the advocacy and free speech goals of the bar and a pretense of professional unity?
It is not as though the individual lawyers – particularly those who do not consent – actually get anything of value from the advocacy and free speech activities of an integrated bar. Instead, it is the bar organization which derives value from trading on the names and reputations of its non-consenting members. For that, the bar organization should pay a fair compensation.
Of course, a bar organization, has a right to engage in free speech activities on behalf of itself and any consenting members. But does a bar organization have a “right” to speak on behalf of people who became members involuntarily, who never consented to join, and whose memberships were only obtain at the point of the sword? If a person has their land taken for a public use, they are entitled to fair compensation. If a person’s personal services are required for some public purpose, they are entitled to fair compensation. Why are licensed lawyers treated as less than these?
Sure, trimming back bar dues attributable to free speech activities helps alleviate the economic burden of being forced to support the propagation of views a lawyer may oppose. But it does nothing to alleviate the embarrassment and/or guilt by association of having one’s name and reputation used as a propaganda tool even if it costs nothing.
The solution adopted by California in 2017, whereby certain free speech activities were spun off from an integrated bar and relocated in an all voluntary bar association may, at first glance, seem to solve the problem. However, the California solution still labors under the false view that only some of the bar’s activities are viewpoint or ideologically driven, when in fact all of them are. The other problem, of course, is that the State Bar of California, in spite of its reorganization, is still a mandatory bar. In that respect, the great spin-off of 2017 did nothing to alleviate the legal concerns raised elsewhere in this brief.
Consequently, the leadership role the bar organization desires for itself is only made possible by compelling membership, and then trading on the value of its members without regard for obtaining their prior consent. A bar organization simply has no right at all to speak on behalf of non-consenting members, as to any matter whatsoever (including without limitation all so-called non-ideological matters).
Affirming the natural right of choice in organizational association and recognizing the lack of any compelling interest in compulsory joinder preserves the free speech rights of Michigan attorneys and recognizes their time and money are to be invested or spent at their own discretion as their conscience dictates.
A mandatory State Bar is not merely a key component of the regulatory scheme for lawyers. It is, in fact, an integral part of a belief system foisted on lawyers veiled under the guise of a regulatory scheme, but which behaves exactly like a religion. When one recognizes that the term religion – for legal purposes – encompasses sincerely held beliefs and values that give meaning and purpose to a person’s life, it then becomes plain that the State Bar of Michigan operates as an institution propagating a certain system of belief. As such, the State Bar is subject to a religious establishment analysis, starting with this: religious establishments are prohibited.
A. A Historical Four-Part Test For Identifying A Religious Establishment
It is ironic that for all the multitude of Establishment Clause cases litigated in the U.S., including those decided by the U.S. Supreme Court, that Court has never definitively described exactly what “an establishment of religion” is. Perhaps this fact alone explains why the Court’s constitutional analysis has been so haphazard.
Permit us to suggest, in an attempt to go where neither devils nor angels have feared to tread, there is a rather simple four-point test, derived from history. In particular, we refer to the experience of religious establishment(s) in Virginia, from its founding up until the adoption of Thomas Jefferson’s Bill for Establishing Religious Freedom.12
Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia.13
Here, then, are the historic indications of the presence of a state establishment of religion:
• Compulsory membership/attendance. In Colonial Virginia, all residents were required to attend religious services sponsored by the official church (the Anglican Church). Failure to attend was punishable by law.
• Compulsory financial support via taxation. Following the model of the ancient Israelites, all residents in Virginia were required by law to pay over a “tithables” tax, initially consisting of tobacco leaves, but later converted into standard monetary terms.
• Government approved teachers. A person could not teach religion unless they were a member of the clergy of the state established religion (Anglican/Episcopalian).
• Government approved curriculum. The order and form of worship were prescribed by law. In Colonial Virginia, it was the Book of Common Prayer.
Many state mandatory bar organizations meet all these tests and constitute impermissible establishments of religion. Let us examine it more closely. For instance, in every mandatory bar, membership is required of every lawyer in the state. And of course, every mandatory bar exacts the payment of annual bar dues by all lawyers. Failure to pay this tax negates a lawyer’s license to practice law in the state.
In states imposing mandatory continuing legal education requirements on lawyers, the state-approved curricula and state-approved teacher criteria are met as well. Because whenever mandatory CLE is imposed, the State Bar will also have a CLE accreditation body, whose function is to approve and accredit courses and teachers (or at a minimum, course providers). The State Bar of Michigan mandated lawyer CLE from 1987-2001, but does not do so at present.
However, two additional indications of a religious establishment shared by all mandatory bar organizations are dogma and a priesthood. By dogma, we refer to that body of rules functioning as a universal moral code for all lawyers – the Rules of Professional Conduct. A moral code – any moral code – consists of those rules of right and wrong behavior which all adherents are required to obey. And that is exactly the function of the Rules of Professional Conduct.
How wonderful, that virtually all state rules are modeled after the Rules of Professional Conduct propounded by the American Bar Association. The ABA rules, of course, only apply to those lawyers who choose freely, of their own will, in accordance with their true freedom of association, to become members of the ABA. How handy it is, that the various state bar organizations, have foisted this moral code upon all members of the state bars, regardless of choice, consent, or freedom. Thereby assuring nationwide conformity with moral rules which, by their very nature, were only intended to apply to willing devotees.
Which now brings us to the point of identifying the priesthood in this whole schema.
B. Priests Ministering Before the Altar of Justice
It should not be surprising that judges have recognized over the years the religious nature of the legal system in which lawyers, the courts, and state bars are all an integral part.
So, following this, we have the solemn assurance of the court, who has just informed the jury that he [the assistant district attorney] is a priest at the altar of justice, “which is the most sacred altar ever erected to God; it is the altar where liberty, and love, and light, and hope, prosperity, and peace are preached, inculcated, promulgated, and homologated.”14 (Emphasis added.)
Granted, the court in People v. De Martine was skeptical of the claim. Yet, this phrase, a priest at the altar of justice, is a fairly common phrase used by jurists. We found at least twenty instances of usage by searching Westlaw Edge for adv: “altar #of justice.” Has the phrase ever been used in Michigan, specifically? As it turns out, it has – and fairly recently.
We close by quoting the following remarks of the Ohio Supreme Court nearly a century ago when faced with the same duty to deal with a misbehaving lawyer as we are today: “When a man enters upon a campaign of vilification he takes his fate into his own hands and must expect to be held to answer for the abuse of the privilege extended to him by the constitution. An attorney of more than twenty years’ standing at the bar must be presumed to know the difference between respectful, fair and candid criticism, and scandalous abuse of the courts which gave him the high privilege, not as a matter of right, to be a priest at the altar of justice. [Citation omitted.]”15 (Emphasis added.)
Let’s assume the judges in these multiple instances were not merely reciting a trite phrase, but intended to convey a serious message. Indeed, a very serious message, as many of the cases concerned attorney discipline and/or disbarment. So, let us flesh out what this religious system looks like, where lawyers minister as priests, and the bench is regarded as the altar of justice.
Where is the altar of justice – the altar of anything, really – to be located? In the temple, of course. Which makes every court a mini-temple. But the high holy altar is of course located at the high holy temple, the Supreme Court in any jurisdiction.
Lawyers, as priests, are the mediators between the people and what they seek communion with: law and justice. Approach the temple to seek justice on your own if you wish, but woe to them who fail to obtain the services of a priest to guide them. Which places all lawyers ultimately in the role of gatekeepers and guardians of the true faith, that is, whatever semblance of law and justice the courts deign to decree.
The State Bar is the archdiocese, or presbytery – the ecclesiastical hierarchy and body of bishops or overseers who watch over the priests. Its primary function is to see to it that all the priests observe only the approved form of worship, bow down to the supreme powers on a regular basis, and root out any impostors. “All rise, the court is now in session.” In other words, to ensure that all lawyers follow the Professional Rules of Conduct and other miscellaneous social justice standards du jour, pay their bar dues and participate in the functioning of the bar, and applaud the vigorous prosecution of the Unauthorized to Practice Law statutes, which secure the professional cartel for mutual economic gain. Praise be to the State Bar, our overlords (er, overseers).
The judges of the courts, but especially the Supreme Court judges, are the living oracles of the law, from whose lips flow justice in the form of infallible edicts and bulls. Such edicts are not actually infallible, of course, yet with a constant recourse to established precedents and stare decisis, and even to super-precedents (the truly infallible decrees of the courts), the general infallibility of all judicial decrees is assured. And of course, it is the state Supreme Court which ordains all lawyer-priests, with the advice and assistance of the bishopric.
And that, we submit, is a more certain state establishment of religion than any other a person will ever find.
This phrase, a priest at the altar of justice, a reference to bench and bar, has been repeatedly used in American jurisprudence for well over 150 years, in courts scattered among multiple jurisdictions. Therefore, it is too late for courts to disclaim it either as an aberration or as an insignificant phrase. All American courts are, we submit, estopped from denying the religious nature of the legal system and the priestly relationship between bench and bar. We didn’t coin the phrase; neither is it a legal obscurity. This is the legal system’s own view of itself. So the legal system, including all mandatory State Bars which are a part of it, is stuck with the characterization – a religious characterization.
Even so, if judges are not mouthpieces for the gods of justice, then what are they? Are they just a person dressed up in a black robe that gets paid to hear and decide other people’s disputes? Some look at law as a business. Some look at law as a chance to make law and shape the world. Some look at it as a docket to be processed. But virtually all judges demand respect and consider their courtroom their kingdom.
When you enter a courtroom you are commanded to rise and those who do not are escorted out or held in contempt, and subject to fines and imprisonment. It is customary in a church to rise at some point during worship but not even clergy command it upon pain of excommunication. By paying your bar dues you are then entitled to stand before the court on behalf of another and plead their cause seeking relief. But only rarely do churches make tithing mandatory as a condition of pleading one’s case before the Almighty and seeking His relief. If the Court summons you to appear and you fail to do so, the sheriff will come and physically compel you to appear. But if your local religious assembly demands you attend worship and you fail to do so, no one compels you to do so. Courts typically ask what other judges have opined because they generally regard such opinions as the one true and only article of judicial faith to be religiously followed. If you have no case law, you risk an adverse decision. If your religious hierarchy declares its doctrines to be the one and only true faith but you wish to advocate other views, then you risk shunning. The point is that even modern religious assemblies are not as biased or dogmatic as judicial ones when it comes to demanding obeisance, financial support, conformity, and commitment to doctrine. In keeping with this motif, the State Bar sees itself as a vital part of an essentially holy enterprise – an enterprise dedicated to the betterment of humankind. Just like a religion
12. Adopted by the General Assembly of Virginia on January 16, 1786, now part of Code of Virginia, §57-1.
13. Reynolds v. United States, 98 U.S. 145, at 162-163 (1878).
14. People v. De Martine, 205 A.D. 80, at 84, 199 N.Y.S. 426, at 429 (1923).
15. Grievance Adm’r v. Fieger, 476 Mich. 231, 263-64, 719 N.W.2d 123, 144 (2006).