The Trials of Being a Conservative Lawyer

While membership in bar associations is voluntary, most states require lawyers to enroll in the state bar to practice law in that state. These are known as mandatory or integrated bar associations. These state bars can charge mandatory membership fees and often do. Conversely, a new advisory opinion on judicial ethics threatens to prevent judges from participating in private lawyer organizations.

Two lawyers from Wisconsin are challenging the practice of mandatory bar associations, and another has refuted the reasoning behind the new advisory opinion.

Compelled Advocacy

Adam Jarchow and Michael D. Dean filed a lawsuit against the State Bar of Wisconsin, of which they are members, arguing that its status as an integrated state bar is unconstitutional under the First Amendment. According to them, the Wisconsin State Bar collected approximately $5 million in membership fees in 2019.

The lawsuit has made its way to the door of the Supreme Court. Depending on whether the justices take up the case, the Court could hand down a decision later this year.

Jarchow and Dean disagree with the state bar’s official positions on several issues, including the death penalty, felon voting rights, and matters related to criminal justice. Their petition reads:

Wisconsin attorneys do not all share the same vision for the law and the administration of justice and so may disagree with the State Bar’s positions on any number of important public policies, as the Petitioners do. Nonetheless, they are all compelled by State law to subsidize its advocacy in support of those positions and other speech by the Bar with which they disagree.

The plaintiffs argue that past decisions to sanction integrated bar associations have been invalid since the Supreme Court’s decision in Janus v. AFSCME in 2018. The Court ruled that public-sector unions are not allowed to charge mandatory agency fees to its members.

“The compelled-dues aspect of Wisconsin’s integrated-bar scheme is identical to that of the agency-fee scheme invalidated in Janus,” the lawyers wrote.

Targeting Private Lawyer Associations

While conservative lawyers are being forced to subsidized liberal advocacy group, there is also a push to force them to resign from their own private lawyer associations.

In February 2019, the Judicial Conference’s Committee on Codes of Conduct issued Advisory Opinion 116, which put heavy restrictions on what types of research institutes, associations, and other political organizations judges and law clerks are allowed to participate in. The opinion has several stipulations regarding the nature of a given organizations’ funding that would prohibit engaging with the Federalist Society.

While the opinion did not mention the Federalist Society by name, some noted that the decision clearly targets it. The society counts Justices Brett Kavanaugh and Neil Gorsuch along with several Trump-appointed federal judges among its 60,000 members, and it has received funding from prominent conservative donors such as the Mercer Family Foundation and the Koch network.

However, the justices and judges have been able to retain their memberships due to an argument made by some, such as Theodore B. Olson in Politico, that the Federalist Society is not a political organization since it focuses on educational seminars and does not lobby congress or advocate for certain pieces of legislation. Olson pointed out that the Federalist Society does not take positions on contested legal questions and has never filed a lawsuit in its entire history, unlike the American Bar Association.

In a blog post Sen. Sheldon Whitehouse (D-RI) criticized the Federalist Society for receiving donations from the Kochs, the Mercers, and other “shadowy corporate and right-wing organizations” that spend “dark money” to influence American politics. Whitehouse is a big fan of using the term “dark money” to refer to the practice of concealing political contributions to policy research groups, despite left-of-center donors engaging in the practice themselves.

Next Moves

While it is unclear how long the Supreme Court justices in the Federalist Society will have to continue to struggle against the committee, the Wisconsin State Bar’s response to Jarchow and Dean’s petition is due February 3. After that, we will see whether the justices take up their case.