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A Reassessment of Mandatory State Bar Membership in Light of Levine V. Heffernan Peter A

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A Reassessment of Mandatory State Bar Membership in Light of Levine V. Heffernan Peter A Marquette Law Review Volume 73 Article 6 Issue 1 Fall 1989 A Reassessment of Mandatory State Bar Membership in Light of Levine v. Heffernan Peter A. Martin Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Peter A. Martin, A Reassessment of Mandatory State Bar Membership in Light of Levine v. Heffernan, 73 Marq. L. Rev. 144 (1989). Available at: http://scholarship.law.marquette.edu/mulr/vol73/iss1/6 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. A REASSESSMENT OF MANDATORY STATE BAR MEMBERSHIP IN LIGHT OF LEVINE V. HEFFERNAN I. INTRODUCTION Legal and political divisiveness has been the hallmark of the integrated bar' since its initial appearance over a half-century ago.2 Integrated bar states3 have frequently encountered opposing viewpoints from lawyers who have objected to the constitutionality of compulsory membership in an as- sociation. In no place has this debate been more vigorous than in Wiscon- sin. In fact, shortly after Wisconsin established its own integrated bar,4 furor by attorneys over compelled financial support of the bar resulted in a lawsuit which challenged its constitutional validity. In Lathrop v. Dono- hue,5 the United States Supreme Court held in a plurality opinion,6 that 1. The phrase "integrated bar" has been used synonymously with terms such as "unified bar," "mandatory bar," or simply "state bar." Two characteristics are germane to every inte- grated bar association: First, dues-paying membership is a precondition to practicing law in a state that has such a bar; and second, the bar is created by court rule or by legislation. See D. McKEAN, THE INTEGRATED BAR 22 (1963); Comment, The Integrated Bar Association, 30 FORDHAM L. REV. 477 (1962). 2. The first integrated bar association was established in North Dakota by legislative enact- ment in 1921. For a complete list of other states with integrated bar associations, see infra note 3. 3. The following states have integrated bar associations: Alabama (integrated in 1923), Alaska (1955), Arizona (1933), California (1927), Florida (1949), Georgia (1963), Idaho (1923), Kentucky (1934), Louisiana (1940), Michigan (1935), Mississippi (1932), Missouri (1944), Ne- braska (1937), Nevada (1929), New Hampshire (1968), New Mexico (1925), North Carolina (1933), North Dakota (1921), Oklahoma (1939), Oregon (1935), South Carolina (1967), South Dakota (1931), Texas (1939), Utah (1931), Virginia (1938), Washington (1933), West Virginia (1945), Wisconsin (1956) and Wyoming (1939). The District of Columbia was integrated in 1972. The territory of Puerto Rico was integrated in 1932 and the Virgin Islands were integrated in 1956. Nineteen states have no integrated bar: Arkansas, Colorado, Connecticut, Delaware, Ha- waii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee and Vermont. See PARNESS, CITATIONS AND BIBLI- OGRAPHY ON THE UNIFIED BAR IN THE UNITED STATES 3-4 (1973). Montana was integrated in 1974. See Application of the President of the Montana Bar Association, 163 Mont. 523, 518 P.2d 32 (1974). Rhode Island was integrated in 1973. See Petition of the Rhode Island Bar Ass'n, 111 R.I. 936, 306 A.2d 199 (1973). The trend of unification is evidenced by the number of jurisdictions which unified each decade: six jurisdictions unified in the 1920s, fifteen in the 1930s, three in the 1950s, three in the 1960s, and three in the 1970s. Id. 4. In 1956, the Wisconsin Supreme Court unified the bar on an experimental basis. See Inte- gration of the Bar, 273 Wis. vii, 79 N.W.2d 441 (1956); In re Integration of the Bar, 273 Wis. 281, 77 N.W.2d 602 (1956). In 1958, the Court extended its 1956 unification order indefinitely. See In re Integration of the Bar, 5 Wis. 2d 618, 93 N.W.2d 601 (1958). 5. 10 Wis. 2d 230, 102 N.W.2d 404 (1960), aff'd, 367 U.S. 820 (1961). 6. 367 U.S. 820 (1961) (Brennan, J., majority opinion). Concurring opinions were submitted by Justice Harlan and Justice Whittaker. Justice Douglas and Justice Black dissented. 1989] STATE BAR MEMBERSHIP Wisconsin's mandatory bar membership requirement did not violate the plaintiff's first amendment right not to associate with the state bar.7 Sup- porters of the integrated bar movement hoped that the Court's pronounce- ment in Lathrop would silence critics once and for all. However, opposition to the integrated bar in Wisconsin and in other states has persisted.' In 1988, lawyers opposing the integrated bar won an important victory when a United States District Court declared Wisconsin's mandatory bar membership requirement unconstitutional in Levine v. Supreme Court of Wisconsin.9 The district court ruled that Lathrop was no longer determina- tive in assessing the constitutional propriety of Wisconsin's mandatory bar for two reasons. First, in subsequent Supreme Court decisions in which freedom of asso- ciation was an issue, the Court typically required that the state demonstrate a compelling interest in abridging the rights of its citizens, rather than the lesser requirement of a legitimate state interest analysis applied in Lath- rop.' Second, because the character of the Wisconsin bar had changed sig- nificantly since Lathrop, that case was factually distinguishable from the current controversy." Concluding that Lathrop was no longer dispositive on the issues, the district court applied a compelling state interest analysis to the first amendment infringement and determined that compulsory bar membership was unconstitutional. 2 On appeal to the United States Court of Appeals for the Seventh Cir- cuit, the court reversed the district court decision, concluding that Lathrop remained the controlling authority on the issue of integrated bar associa- tions.1 3 Nevertheless, the court concurred with the district court that the State Bar of Wisconsin had changed significantly since Lathrop.4 More- over, the court of appeals stated that "[i]f Wisconsin's present integrated bar is substantially similar to its predecessor, Lathrop compels us to con- clude that it serves a legitimate state interest."'" Unfortunately, the court of appeals never made an adequate comparison of the past and present bar 7. Id. at 843. 8. See infra note 119 for a list of cases raising compulsory bar membership issues. 9. 679 F. Supp. 1478 (W.D. Wis. 1988) (Crabb, C.J.), rev'd sub nom. Levine v. Heffernan, 864 F.2d 457 (7th Cir. 1988), cert. denied, 110 S.Ct. 204 (1989). 10. 679 F. Supp. at 1493-94. 11. Id. at 1494. 12. Id. at 1502. 13. 864 F.2d 457 (7th Cir. 1988) (Flaum, J.). 14. Id. at 458 ("Since Lathrop was decided, the character of the Wisconsin bar has changed considerably."). 15. Id. at 462. MARQUETTE LAW REVIEW [Vol. 73:144 associations. Consequently, some doubt remains concerning whether Lath- rop is indeed factually distinguishable from the Levine decision. This Comment will first address the history of the integrated bar and the underlying policy concerns which culminated in its nationwide implementa- tion. Special attention will be given to the integrated bar's evolution in Wis- consin, including a discussion of events before and after the Lathrop decision. Part Three of the Comment will explore the constitutional impli- cations raised by compulsory membership in an association. Part Four pro- vides a discussion of the issues raised by the district court in Levine as well as a critique of the court of appeals decision. Finally, this Comment will conclude with an assessment of the efficacy of the integrated bar and a rec- ommendation that states opt for voluntary bar status. II. BACKGROUND A. History of the Integrated Bar The national movement for unification of bar associations began in 1914. The principal advocate of the movement was Herbert Harley, founder and executive secretary of the American Judicature Society. 6 Har- ley believed that voluntary bars were "entirely inadequate to the needs of the lawyer from either the standpoint of self-interest or from the standpoint of public service."' 7 He asserted that bar associations should promote "so- cial intercourse," political involvement in "statecraft," and the "need for education of the bar, for its proper discipline, and for the conduct of its business."' 8 Harley deemed that the best means to achieve those purposes was to "[weld] all the lawyers of a state into one closely knit organiza- tion."' 9 In retrospect, Harley had good reasons to argue for bar integration. First, the membership rate in state bar associations of the nineteenth and early twentieth century was low. For example, as compared to the medical societies of twenty-five states in the late 1920s, which had more than two-thirds of their state's doctors as members, membership in volun- 16. The integrated bar movement in the United States was considered to have commenced in 1914 when Harley delivered a speech to the Lancaster County Bar Association in Lincoln, Ne- braska on December 28, 1914. See D. McKEAN, supra note 1, at 30-37. For the complete text of Harley's speech, see Harley, A Lawyer's Trust, 29 JUDICATURE 50 (1945); Sorenson, The Inte- grated Bar and the Freedom of Nonassociation - Continuing Seige, 63 NEB. L. REV. 30, 34 (1984); Comment, Compelled Financial Support of a Bar Association and the Attorney's First Amendment Rights: A TheoreticalAnalysis, 66 NEB. L. REv. 762, 767 (1987). 17. Harley, supra note 16, at 51. 18. Id. at 51-52. 19. Id. at 56. 1989] STATE BAR MEMBERSHIP tary bar states during the 1920s included only ten percent to thirty percent of the practicing lawyers.2 0 Such low membership was inexplicable consid- ering that most bar associations were not selective with respect to whom they admitted.21 However, since Harley's time, membership in voluntary 22 bar states has improved tremendously.
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