Should attorneys in Wisconsin be required to pay dues and join the State Bar?
That’s the question in a federal lawsuit filed by a Milwaukee based conservative think tank — the Wisconsin Institute for Law and Liberty (WILL). Thirty-two states, including Wisconsin, have such systems. For years, Rick Esenberg says some attorneys here have been pushing to get rid of the mandate.
“I’ve been a lawyer for a long time, sometime back in the stone ages it seems. And it’s been an issue ever since I’ve been practicing law,” says Esenberg, president of WILL.
He says attorneys shouldn’t have to join an organization in order to practice law. Active members of the bar pay annual dues and fees of around $500. The amount includes member dues of $260, plus Wisconsin Supreme Court Assessments, which the State Bar collects.
But Esenberg says the cost isn’t the only reason some people object to becoming members.
“There is an issue here as to whether or not the constitutional rights of these people are being violated by forcing them to associate with an organization that they do not want to associate with,” Esenberg says.
He says the bar has taken political stances and other positions that not every attorney may agree with. And he says while attorneys in a number of other states are required to join bar associations, what makes Wisconsin different is the role the state bar here plays.
“In many of these states where lawyers are required to be members of the bar association, the bar association performs some regulatory function. That is, it itself is involved in deciding who can be admitted to practice law or it is involved in attorney discipline. Reviewing allegations that a lawyer behaved in some unprofessional or unethical way. The bar association doesn’t do those things here,” Esenberg says.
He says that those are tasks handled by governmental offices — the Board of Bar Examiners and the Officer of Lawyer Regulation.
What the state bar does do here is review proposed legislation, educate lawyers on the law, provide outreach to lawyers with alcohol and drug problems and make referrals for people looking for counsel.
The state of Illinois is similar to Wisconsin in that the bar there does not provide regulatory functions. The difference is that the Illinois State Bar is voluntary. Though lawyers do have to pay annual mandatory registration fees to practice in the state.
“We attract our members who are licensed lawyers in the state of Illinois as a requirement and choose to pay dues to attend programs and engage in bar activities based on their voluntary decision that the programs and efforts we are making are relevant to them and their practice,” says David Sosin, president of the Illinois State Bar.
Sosin says that because the Illinois Bar is voluntary it has to work to remain valuable. Like in most states, the Illinois bar association has a sliding cost scale. New members are free. Others pay from $200 to $400 a year. Sosin says that if he had to guess he would say about 40% of lawyers licensed in Illinois are active members.
Bobbi Howell is a partner at Foley and Lardner and represents the State Bar of Wisconsin. She says the bar believes all members and the public are best served by having the requirement that attorneys join.
“By having all practicing lawyers be members of the bar, the bar gets a much more comprehensive input from lawyers [from] various socio-economic statuses of the lawyers themselves as well as the clients that they represent in all different areas of the law. People with different perspectives from northern Wisconsin, from southern Wisconsin and rural and urban and the whole gamut,” Howell says.
When it comes to complaints about positions that the bar has advocated for, Howell says when you become a bar member, you can voluntarily join subsets of the bar. That allows you to pay dues to support different things.
The federal lawsuit that seeks to ban the mandate isn’t the first challenge to the requirement. The state Supreme Court has been petitioned to make the change many times, but justices have refused. In 1990, as the court considered a challenge, justices suspended the requirement, then reinstated it two years later.
So, would lawyers in Wisconsin remain members of the state bar if the federal court throws out the mandate? Rick Esenberg, the guy who heads the organization behind the lawsuit says: “You know I don’t know, I probably would.”
He says the suit isn’t about the value provided. It’s about being forced to be a part of an organization in order to work.