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The Incoherence of the Unified Bar Concept: Generalizing from the Wisconsin Case

Published online by Cambridge University Press:  20 November 2018

Theodore J. Schneyer
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Abstract

Many of the unified bars—public bodies to which all lawyers must belong and pay dues in order to practice—have been embroiled in legal and political disputes recently. Focusing on the history of the unified bar in Wisconsin, this article accounts for these disputes in terms of contradictions inherent in the very concept of a unified bar. Across a wide range of issues, the author argues, decision makers have been unsure whether to treat a unified bar as a public agency, a compulsory membership organization, or a private voluntary association, and thus unable to determine when public accountability, the protection of dissident members, or associational autonomy should be the dominant policy in unified bar affairs. The author concludes that disputes over questions of unified bar governance are unlikely to subside and that the unified bars should therefore be terminated in favor of a combination of private voluntary state bar associations and administrative agencies independent of the organized bar.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 8 , Issue 1 , Winter 1983 , pp. 1 - 108
Copyright
Copyright © American Bar Foundation, 1983 

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References

1 A unified bar has two essential features: (1) as a condition of licensure all lawyers are required to be dues-paying members of a bar organization that (2) is created by court rule or legislation and therefore is a public body. Integrated bar is synonomous but less used today, probably to avoid the misimpression that unintegrated bar associations have racially discriminatory policies. The older term self-governing bar, happily, has fallen into disuse: its meaning was never clear, and by any definition the extent and desirability of “self-government” in the unified bars are matters of debate. Generally, and in this article, the unified bars are called state bars, in contrast to the private voluntary-membership state bar associations that exist in all nonunified states and coexist with state bars in the District of Columbia, North Carolina, Virginia, and West Virginia. American Bar Association, 1980–81 Directory of Bar Associations 33 (Chicago: American Bar Association, 1980). Nineteen states have no unified state bar: Arkansas, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Tennessee, and Vermont. Id. at 12. Many of these states lie in the densely populated northeast, where strong local bar associations developed in the large cities before the unification movement began. These associations often saw unification as a threat to their own influence and their selective membership policies and therefore opposed it. See infra note 45. Nearly all the voluntary bar states now maintain a lawyer registry and charge lawyers an annual fee, with the proceeds used to finance discipline or some other regulatory function. See M. Bays Shoaf, State Disciplinary Enforcement Systems Structural Survey ([Chicago]: American Bar Association & National Center for Professional Responsibility, 1980). For details of the registration systems in two voluntary bar states, see Me. R. Ct., Bar R. 4, 6, 10; Pa. Sup. Ct. R. 219. Unified bars vary considerably in function. Some engage in a full range of traditional bar association activities, including (under supreme court supervision) administration of the bar examination and the disciplinary process. See, e.g., Cal. Bus. & Prof. Code §§ 6000–6087 (West 1974 & Supp. 1982). At the other extreme are two state bars that serve only to maintain a registry, collect fees, and carry out certain regulatory functions. See N.C. Gen. Stat. §§ 84–15 to 84–38 (1981); W. Va. Code § 51–1-4a (1981). Between these extremes lie the majority of state bars, which engage in most bar activities but do not administer certain regulatory programs. In Wisconsin, e.g., the state bar administers the recently established client security fund but since 1977 has played virtually no role in discipline or in mandatory continuing legal education (MCLE) enforcement and has never been involved in bar admissions. See Wis. Sup. Ct. R. chs. 10, 12, 21, 31, 40. Discipline and MCLE enforcement in Wisconsin are funded by a levy on all state bar members, admissions, by applicants' fees. The disciplinary process is administered by the Attorneys Board of Professional Responsibility, admissions and MCLE by the Attorneys Board of Professional Competence. Both boards are appointed by the supreme court and independent of the state bar. Id. chs. 21, 31, 40. The state bars vary also in the extent to which programs are funded by user fees and contributions rather than compulsory dues. By referendum the D.C. Bar Rules were recently amended to require that compulsory dues be used solely for discipline and other strictly regulatory functions. See On Petition to Amend Rule I of the Rules Governing the Bar, 431 A.2d 521 (D.C. 1981), discussed infra in text accompanying notes 435–55.Google Scholar

2 In 1913 Herbert Harley, executive secretary of the newly formed American Judicature Society, offered the first widely discussed proposal for bar unification in the United States. See Harley, Herbert, The American Judicature Society: An Interpretation, 62 U. Pa. L. Rev. 340, 351 (1913). There was, however, an earlier proposal. See Bar Associations and the Public, 16. Am. Law. 85, 90–93 (1908); Proposed Statute, Making Effective Ideas Contained in Bar Association Articles, 16 Am. Law. 309 (1908).Google Scholar

3 Curiously, however, Oklahoma dentists were for a time required to belong to and fund an organization established by the state legislature to investigate charges of professional wrongdoing. See Integration Sought by Oklahoma Dentists, 20 J. Am. Judicature Soc'y 90 (1936). Also, Congress once considered requiring all stockbrokers and dealers to belong to the National Association of Securities Dealers or to a recognized stock exchange that maintains an internal disciplinary process. See Jennings, Richard W., Self-Regulation in the Securities Industry: The Role of the Securities and Exchange Commission, 29 Law & Contemp. Probs. 663, 684–87 (1964). It has long been common, of course, to require members of professions and occupations to pay an annual fee used to enforce a licensing scheme. See Friedman, Lawrence M., Freedom of Contract and Occupational Licensing 1890–1910: A Legal and Social Study, 53 Calif. L. Rev. 487 (1965). But these arrangements involve no mandatory association membership and no fees for nonregulatory purposes.Google Scholar

4 The pace of the movement is suggested by the following figures: 6 jurisdictions unified in the 1920s, 15 in the 1930s, 4 in the 1940s, 2 in the 1950s, 3 in the 1960s, and 3 in the 1970s. For the years and the manner (by court or legislature) in which the 33 unified bars (including the District of Columbia and Puerto Rico) were created, see Jeffrey A. Parness, Citations and Bibliography on the Unified Bar in the United States 3–4 (Chicago: American Judicature Society, 1973 & Supp.).Google Scholar

5 Roscoe Pound, The Lawyer from Antiquity to Modern Times 349 (St. Paul, Minn.: West Publishing Co., 1953). With this phrase Pound was able to express the seemingly inconsistent sentiments that the unified bar represents the highest stage in an evolutionary process but also the return to a “golden age” in professional life.Google Scholar

6 Thus, the president of the largest voluntary state bar association recently described freedom of membership and freedom from court supervision as assets whose value is “ever more evident in contrast to the current condition” in the unified bars. Forger, Alexander D., The President's Message, 53 N.Y. St. B.J. 263 (1981).Google Scholar

7 See In re Proceedings for Promulgation of a Special Rule of Court to Provide for Associational Unification of All Attorneys Licensed to Practice Law in the State of Maine, No. 4890 (Me. Sup. Jud. Ct. May 11, 1978), reprinted in 12 Me. B. Bull. 112, 139–40 (1978); Woodford, Tom, Should There Be a Unified State Bar of Colorado? 6 Colo. Law. 1925 (1977); Association Trustees Vote ‘No’ on Bar Unification Proposal, Advocate, Jan. 1980, at 4 (N.J.); Unification Proposal in Tenn. Withering, B. Leader, May-June 1977, at 15. Many other voluntary bar states rejected unification proposals earlier in the 1970s.Google Scholar

8 Compare ABA Directory, supra note 1, at 33 (Arkansas and Minnesota now listed as voluntary bar states), with Parness, supra note 4, at 4 (same states “partially integrated”).Google Scholar

9 See, e.g., Habermann, Philip S., Advantages of the Unified Bar, 10 N.H.B.J. 36, 38 (1967). See also Petition of Fla. State Bar Ass'n, 40 So. 2d 902, 908 (Fla. 1949) (“Its avowed opponents have invariably become its ardent supporters”).Google Scholar

10 See In re Discontinuation of the State Bar of Wisconsin as an Integrated Bar, 93 Wis. 2d 385, 286 N.W.2d 601 (1980) (petition for immediate discontinuation dismissed, but court would appoint a committee to review the state bar in 1982).Google Scholar

11 See On Petition to Amend Rule I of the Rules Governing the Bar, 431 A.2d521 (D.C. 1981). Section activities will still be funded by user fees and certain other activities by voluntary lawyer contributions, but in such matters the D.C. Bar is now on the same footing as the voluntary Maryland State Bar Association next door.Google Scholar

12 See Arrow v. Dow, 544 F. Supp. 458 (D.N.M. 1982).Google Scholar

13 See Falk v. State Bar, 411 Mich 63, 305 N.W.2d 201 (1981), noted in 1982 Det. C.L. Rev. 737.Google Scholar

14 See, e.g., In re Regulation of the Bar, 74 Wis. 2d ix, xv (1976).Google Scholar

15 While a minority of nonlawyers have been appointed to serve on disciplinary boards in many states, see Shoaf, supra note 1, appointments to state bar boards of governors have been much rarer. California began the practice in 1976. See Cal. Bus. & Prof. Code § 6013.5 (West Supp. 1982). Wisconsin followed suit by court rule. See In re Regulation of the Bar, 81 Wis. 2d xxxv, xlii (1977) (three non-lawyers without voting privileges); In re Amendment of State Bar Rules, 96 Wis. 2d xi (1980) (voting privileges conferred). See also Tex. Rev. Civ. Stat. Ann., art. 320a-1, § 9 (Vernon Cum. Supp. 1982–83).Google Scholar

16 See Sunset Laws Cast Shadow Over Bars, 64 A.B.A. J. 1488 (1978). Sunset laws vary in their details, but all provide for periodic legislative review of public agencies to determine whether they are still needed. No state bar has been discontinued after a sunset review, but review has resulted in the addition of nonlawyers to state bar governing boards in several states. See infra note 415.Google Scholar

17 Wis. Sup. Ct. R. 10.10.Google Scholar

18 For adverse reaction among California State Bar members, see infra notes 403–14 and accompanying text.Google Scholar

19 Wes Smith, Shootout at the Unified Bars, B. Leader, Nov.-Dec. 1978, at 11.Google Scholar

20 Richard E. Sommer, 1979–80 in Retrospect, 53 Wis. B. Bull., June 1980, at 24, 26.Google Scholar

21 Speech by Chief Justice Robert Donnelly before the Missouri Bar Meeting (Kansas City, Sept. 24, 1981).Google Scholar

22 E.g., two justices dissented from the Wisconsin Supreme Court's 1980 decision against discontinuing the state bar. See In re Discontinuation of the State Bar of Wisconsin as an Integrated Bar, 93 Wis. 2d 385, 388, 86 N.W. 2d 601, 603 (1980) (Day & Callow, JJ., dissenting). The D.C. Bar referendum dramatically curtailing the bar's use of compulsory dues was upheld by an evenly divided court. See On Petition to Amend Rule I of the Rules Governing the Bar, 431 A.2d 521 (D.C. 1981). And the Michigan Supreme Court was unable to agree on any decision in its first consideration of a challenge to the constitutionality of state bar activities. See Falk v. State Bar, 411 Mich. 63, 305 N.W.2d 201 (1981).Google Scholar

23 See David F. Pike, Reformers Challenge State Bars, Nat'l L.J., Jan. 5, 1981, at 1, col. 4; John Woytash, Unified Bars Are Under Siege, B. Leader, Nov.-Dec. 1977, at 33; Bar Prexies Square Off on Unification, B. Leader, Sept.-Oct. 1978, at 4.Google Scholar

24 There has been some attention in the law reviews to the constitutionality of the unified bar and of certain unified bar activities. See Reynolds, Jim, Compulsory Bar Dues in Montana: Two (and a Half) Challenges, 39 Mont. L. Rev. 268 (1978); Parker, Jeffrey R., First Amendment Proscriptions on the Integrated Bar: Lathrop v. Donohue Re-Examined, 22 Ariz. L. Rev. 939 (1980). The only book-length evaluation of the unified bar predates the current turmoil: Dayton David McKean, The Integrated Bar (Boston: Houghton Mifflin, 1963).Google Scholar

25 Thus, in 1980 the largest statewide bar organization had over 67,000 members (State Bar of California) and the smallest had under 1,000 members (Wyoming State Bar), but both are unified bars. See ABA Directory, supra note 1, at 33. For a detailed, and now rather dated, description of the wide variations in organizational structure among the unified bars, see three papers on the integrated bar prepared in 1960 for the New York State Bar Association and Columbia University School of Law by William A. Glaser: The Organization of the Integrated Bar; The Debate over the Integrated Bar; Bibliography on the Integrated Bar. For variations in state bar functions see supra note 1.Google Scholar

26 Report of Comm. to Review the State Bar, slip op. (Wis. Sup. Ct. June 1, 1983).Google Scholar

27 The unification debate in Wisconsin has epic dimensions. It began when Wisconsin State Bar Association President Claire Bird proposed in June 1914 that his voluntary association seek legislation unifying the bar. See Bird, Claire B., This Association: What Can It Be and Do? 10 Rep. St. B. Ass'n Wis. 193, 194 (1914). This was the earliest such proposal by a bar association president. See Wisconsin Bar's Belated Start, 17 J. Am. Judicature Soc'y 60 (1933). Unification was regularly discussed in the association in the 1920s and was the object of an unsuccessful legislative campaign in the 1930s. A unification bill was passed over an acting governor's veto in 1943, but in that year and again in 1946 the state supreme court refused to implement the act. See In re Integration of the Bar, 249 Wis. 523, 25 N.W.2d 500 (1946); Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604 (1943). In the 1950s, on the initiative of the leadership of the voluntary statewide association, the court did unify the bar, first as an experiment (see Integration 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)) and then permanently. See In re Integration of the Bar, 5 Wis. 2d 618, 93 N.W.2d 601 (1958). In 1960 the court upheld the constitutionality of its unified bar in the only such case ever to go to the United States Supreme Court, where the Wisconsin court's judgment was affirmed on appeal. Lathrop v. Donohue, 10 Wis. 2d 230, 102 N.W.2d 404 (1960), aff'd, 367 U.S. 820 (1961). Since the mid-1970s, continuation of the unified bar has regularly been an issue, both within the state bar (see, e.g., Sommer, supra note 20; Candidate for President-Elect Dave August, Wis. B. Bull., Apr. 1978, at 11) and before the state supreme court. See In re Discontinuation of the State Bar of Wisconsin as an Integrated Bar, 93 Wis. 2d 385, 286 N.W.2d 601 (1980); State ex rel. Armstrong v. Board of Governors of the State Bar, 86 Wis. 2d 746, 273 N.W.2d 356 (1979); In re Regulation of the Bar, 81 Wis. 2d xxxv, xxxvi (1977). The last-cited order accepted a recommendation to continue the unified bar that was made in the Report of the Supreme Court Committee on the State Bar of Wisconsin 3–7 (Aug. 1, 1977) [hereinafter referred to as the Parnell Report, after the committee chairman, Judge Andrew Parnell, of Appieton, Wisconsin]. A similar recommendation was made recently by another court-appointed committee. See Report of the Supreme Court Committee to Review the State Bar of Wisconsin 5 (Oct. 1, 1982) [hereinafter referred to as the Kelly Report, after Committee Chairman John Kelly, a Milwaukee banker]. That recommendation has also been accepted, but this time by a divided court. Report of Comm. to Review the State Bar, slip op. (Wis. Sup. Ct. June 1, 1983) (per curiam); id., slip op. (Day, J., dissenting); id., slip op. (Abrahamson, J., concurring).Google Scholar

28 See McKean, supra note 24, at 114 (“only a question of time until this guildism is adopted by other professions”); Brief for Appellant, at 62 n.86, Lathrop v. Donohue, 367 U.S. 820 (1961) (analogy to Italian syndicates of 1920s and 1930s).Google Scholar

29 See Lathrop v. Donohue, 367 U.S. 820, 877–85 (Douglas, J. dissenting).Google Scholar

30 Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups 138 (Cambridge: Harvard University Press, 1965).Google Scholar

31 Petition of Fla. State Bar Ass'n, 40 So. 2d 902, 909 (Fla. 1949). For earlier expressions of this kind of nonprogrammatic justification for the unified bar, see infra notes 211–16 and accompanying text.Google Scholar

32 Pound, supra note 5, at 362.Google Scholar

33 See James Willard Hurst, The Growth of American Law: The Law Makers 286–88 (Boston: Little, Brown & Co., 1950); Pound, supra note 5, at 249–72.Google Scholar

34 See generally Robert H. Wiebe, The Search for Order 1877–1920 (New York: Hill & Wang, 1967). On the professions generally, see Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of Calfornia Press, 1977). On the development of trade associations see Louis Galambos, Competition and Cooperation: The Emergence of a National Trade Association 11–85 (Baltimore: Johns Hopkins Press, 1966).Google Scholar

35 Wiebe, supra note 34, at 112.Google Scholar

36 Oliver Garceau, The Political Life of the American Medical Association 104–5 (Cambridge: Harvard University Press, 1941).Google Scholar

37 Hurst, supra note 33, at 289.Google Scholar

38 Garceau, supra note 36, at 104.Google Scholar

39 Pound, supra note 5, at 272.Google Scholar

40 See, e.g., Address of John C. Thompson: Extension of the Powers of the Bar, 13 Rep. St. B. Ass'n Wis. 468, 471 (1921) (reporting responses for more than three-fourths of the states concerning their bar membership).Google Scholar

41 Thomas R. Swisher, Bar Unification in the United States 19 ([Columbus]: Ohio State Bar Association, 1975).Google Scholar

42 While membership in the voluntary associations was of course a privilege, the privilege was routinely conferred in the statewide associations. In a 1915 survey of state bar associations, only Colorado cited the value of selectivity in choosing association members as a counterargument to unification. Report of the Committee on Amendment of the Law, 11 Rep. St. B. Ass'n Wis. 21, 34–37 (1915). See also Hurst, supra note 33, at 289 (after 1910, associations emphasized quantitative growth). Local associations in major metropolitan areas were sometimes a different story. The Association of the Bar of the City of New York, e.g., deliberately limited membership, perhaps to maintain an elite image or to assure that only lawyers willing to work on association projects would belong. See Pound, supra note 5, at 254–56.Google Scholar

43 This was the theory offered in a 1920 Wisconsin State Bar Association committee report:. It must be obvious to everyone that the Association plays no such role in the affairs of the State as it ought to play, none such even, as the State Medical Society, or Agricultural Society, or Teachers' Association. This must be a source of mortification to all those who have the reputation and influence of the profession at heart …. The Committee are of the opinion that [in order to increase membership] it might well be worth while to try the experiment of having forthcoming meetings … deal more with the actual legal, judicial and legislative problems of the day, with a view to contributing to their solution, and somewhat less, perhaps, with mere legal biography and history …. Fundamentally, the activities of any Association, Bar or otherwise, must be made to seem worth while or it will languish and disintegrate. Report of Committee Appointed in 1917 to Consider and Report on the Address of President Goggins, 13 Rep. St. B. Ass'n Wis. 332, 338–39 (1920).Google Scholar

44 The “pluralist” political scientists of the period, such as Harold Laski, generally assumed not only that associations existed to pursue their members' common objectives but also that individuals with common goals would naturally join together to pursue those goals. See, e.g., Harold J. Laski, A Grammar of Politics 67 (4th ed. London: Allen & Unwin, 1938). For criticism of the pluralists' assumptions, see Olson, supra note 30, at 16–22, 111–31. See also Terry M. Moe, The Organization of Interests 2–3 (Chicago: University of Chicago Press, 1980).Google Scholar

45 The American Judicature Society adopted bar unification as part of its general law reform program in 1913 (see Harley, supra note 2, at 351) and published a model bar unification statute in 1918. Redeeming a Profession, 2 J. Am. Judicature Soc'y 105 (1918); Bar Association Act, id. at 111. The Society's Journal continued to campaign for bar unification well into the 1960s and to serve as a national clearinghouse on unification developments. A committee of the ABA Conference of Bar Association Delegates also supported unification and offered a model act in 1919. See An Act to Provide for the Organization and Government of the State Bar, 4 J. Am. Judicature Soc'y 112 (1920). But in 1926 the conference resolved to treat bar unification as a matter of local option. See Harley, Herbert, Special Meeting on Bar Organization Held at Washington, 12 A.B.A. J. 323 (1926). Since 1926 the ABA has remained neutral on the unified bar question, leaving the field to the Judicature Society. The 1926 conference resolution was proposed by William Guthrie and Louis Marshall of the Association of the Bar of the City of New York and the New York County Lawyers Association, respectively. These associations had successfully opposed a bar unification bill in New York state in 1925. See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 121–23 (New York: Oxford University Press, 1976).Google Scholar

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47 See Glenn Greenwood & Robert F. Frederickson, Specialization in the Medical and Legal Professions (Mundelein, Ill.: Callaghan & Co., 1964).Google Scholar

48 Four of the smaller voluntary states are omitted: Delaware, Hawaii, Maine, and Vermont.Google Scholar

49 The following data, collected by telephone, update the figures for the voluntary bar states near Wisconsin. Information provided by the Indiana State Bar Association on January 11, 1983, and the Indiana supreme court clerk's office on January 20, 1983, indicate that the association now has 8,073 members, 87% of the 9,285 lawyers registered to practice in the state. Mary Jane Brittan, Iowa State Bar Association, reported on January 11, 1983, that 98% of all lawyers practicing in Iowa belong to the association. Celene Greene, Executive Director, Minnesota State Bar Association, reported on January 13, 1983, that her association has 9,300 members, nearly 80% of the 12,000 lawyers registered in the state. David Keil, Illinois State Bar Association, reported on January 11, 1983, that 65–67% of the lawyers licensed in Illinois are members.Google Scholar

50 See Olson, supra note 30, at 51. See also, James Q. Wilson, Political Organizations 33 (New York: Basic Books, 1973) (using the term “material incentives” to describe the same phenomenon).Google Scholar

51 See Olson, supra note 30, at 132–67.Google Scholar

52 The fact that many doctors felt compelled to join medical societies to obtain benefits suggests that the unified bar's imposition on the freedom of lawyers not to associate has its unofficial parallels in other professions. In a sense, unification merely substituted de jure compulsion for the de facto compulsion that was more available elsewhere. While the difference between these forms of compulsion may be crucial for some legal purposes, it should not be overemphasized in making political judgments concerning the unified bar.Google Scholar

53 See Garceau, supra note 36, at 103–4; The American Medical Association: Power, Purpose, and Politics in Organized Medicine, 63 Yale L. J. 938, 950–53 (1954). Two facts noted recently by sociologists confirm the significance of selective incentives in explaining changes in medical society membership over time. First, the societies were quite unsuccessful at attracting members in the nineteenth century when, like bar associations, they had almost no selective incentives to offer. P. Starr, The Social Transformation of American Medicine 92 (New York: Basic Books, 1982). Second, medical society membership fell off a bit after 1963 when antitrust decisions barred its use as a prerequisite for gaining hospital staff privileges. J. Berlant, Profession and Monopoly 183 & n.9 (Berkeley: University of California Press, 1975).Google Scholar

54 The Wisconsin State Bar Association began to publish its Bulletin in 1927. But as late as 1938, the Judicature Society complained: “There are still too many state associations that do not realize the absolute need for a journal …. Most of the money devoted to the annual proceedings, or all of it, should be diverted to a live[ly] monthly journal. One who sees many bar publications observes that the associations which are vigorous and growing are the associations which have newsy journals.”State Bar Associations Need Members, 22 J. Am. Judicature Soc'y 41 (1938). The county and state medical societies could offer the popular Journal of the American Medical Association as a prerequisite of membership because the AMA was organized as a federation of state and local societies after 1901. The ABA became a limited federation in 1936, but state bar association and ABA membership have remained distinct. See Edson R. Sunderland, History of the American Bar Association and Its Work 173–80 (Chicago, 1953).Google Scholar

55 See Irving F. Reichert, Jr., The Future of Continuing Legal Education, in American Assembly, Columbia University, Law in a Changing America, ed. Geoffrey C. Hazard, Jr., 167, 169 (Englewood Cliffs, N.J.: Prentice-Hall, 1968).Google Scholar

56 For a comparison between frequency of lawyer malpractice litigation today and earlier in the century, see Ronald E. Mallen & Victor B. Levit, Legal Malpractice § 6 (2d ed. St. Paul, Minn.: West Publishing Co., 1981).Google Scholar

57 See American Bar Association, Division of Bar Services, Directory of Bar Activities, ed. John J. Sweeney, 13–16 (Chicago: American Bar Association, 1980). Some associations also provide a law library or a credit union. Id. at 15.Google Scholar

58 In Wisconsin, e.g., when the voluntary state bar association was reorganized in 1948 and a full-time executive director hired, membership benefits were upgraded. See Habermann, Philip S., Proposed Expansion of Bar Association Activities, 21 Wis. B. Bull. 228 (1948). Publications became more frequent, sections were established, an informal placement service was instituted, and new insurance programs were offered. See Oscar T. Toebaas, The President's Report, Wis. B. Bull., Aug. 1953, at 11–12; E. Harold Hallows, The President's Page, Wis. B. Bull., June 1954, at 5. By 1954 the president reported that membership was up considerably and the association financially sound. E. H. Hallows, President's Report, Wis. B. Bull., Aug. 1954, at 16. The association in 1950 claimed approximately 66% of the practicing Wisconsin bar as members, Report of the Committee on Membership, Wis. B. Bull., Aug. 1950, at 54; but 69% in 1951, Report of the Committee on Membership, Wis. B. Bull., Aug. 1951, at 64; and 74% in 1954, Hallows, supra, June 1954, at 5. Unification came in 1956.Google Scholar

59 Sommer, supra note 20, at 26. See also infra note 154.Google Scholar

60 Pound, supra note 5, at 271.Google Scholar

61 While there are no figures on the size of the Wisconsin State Bar Association's membership loss in the 1930s, the association's cash resources, which came almost exclusively from membership dues, fell each year from June 1931 ($6,801) to June 1937 ($2,242). See Report of Treasurer, 27 Rep. St. B. Ass'n Wis. 4, 7 (1937).Google Scholar

62 See note 4 supra.Google Scholar

63 See William J. Smith, Jr., From the Desk of the Executive Director, Md. B.J., Summer 1980, at 4; Maryland Ads Raise Bar Governance Issue, B. Leader, Sept.-Oct. 1980, at 9.Google Scholar

64 In re Petition to Review Change in State Bar Dues, 86 Wis. 2d xv (1978), discussed infra, text accompanying notes 511–18. Under state bar rules, any dues increase will be reviewed by the court on the petition of 25 dues-paying members. Wis. Sup. Ct. R. 10.03(5). The proposed special assessment was treated as a dues increase. The petitioners who opposed the assessment were government lawyers who felt, according to the state bar president, that “they would not benefit from an advertising program designed to inform the public or improve the image of the organized Bar.”McNulty, Truman Q., The President's Page, Wis. B. Bull., July 1978, at 5, 6. But at the court hearing the petitioners were joined by a representative of the state bar's own Individual Rights and Responsibilities Section. The representative allegedly told the court that in light of the assessment the section no longer supported continuation of the unified bar. In retaliation, the state bar president allegedly vowed to abolish the section, but that has not occurred. See Wisconsin Bar Letters, Hill, James R., Wis. B. Bull., Mar. 1980, at 23. For another instance of alleged recriminations against a state bar member who opposed mandatory bar membership, see Reid Beveridge, State Bar Committee Membership Stirs Dispute, Wis. St. J., Oct. 10, 1978, at 1 col. 1 (lawyer allegedly lost bar committee chairmanship because he favored voluntary bar membership).Google Scholar

65 See Assembly Actions, Wis. B. Bull., July-Aug. 1979, at 90.Google Scholar

66 Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States 4, 34 (Cambridge: Harvard University Press, 1970).Google Scholar

67 This is especially so where exit is not such a costless option that dissatisfied members will always quit rather than try to change policies within an organization. Up to a certain point the voicing of dissent within an organization is surely functional, not merely a source of instability. (Hirschman treats voice and exit chiefly as feedback devices to improve organizational performance rather than as threats to stability.) Since no state has more than one voluntary statewide bar association, a member cannot simply choose to take his business elsewhere. Therefore, a decision to quit would not be costless to the member and presumably would not be taken lightly.Google Scholar

68 See infra note 121.Google Scholar

69 In the D.C. Bar, for example, a 1980 board of governors proposal to increase the authorized dues ceiling from $50 to at least $150 “proved to be a call to arms for a substantial segment of the Bar.” On Petition to Amend Rule I of the Rules Governing the Bar, 431 A.2d 521, 525 (D.C. 1981) (Harris, J.). In a subsequent referendum the members overwhelmingly voted that the board should refrain from seeking to increase the ceiling to more than $75. Id. Similarly, in 1976 Texas State Bar members voted two-to-one against a proposal to increase dues from a top level of $65 to $100. Mary Alice Davis, Crossing the Bar, Tex. Observer, Feb. 25, 1977, at 3, 4.Google Scholar

70 In Wisconsin the state bar petitioned the supreme court in 1976 to increase maximum dues from $40 to $100. When strong opposition was expressed, the court raised dues to only $60 and appointed a committee to study state bar activities and management. See In re Regulation of the Bar 81 Wis. 2d xxxv (1977). In 1977 the state bar renewed its request for a dues hike to $100, but the court authorized dues of $60 for bar operations, plus approximately $30 in fees to support the independent regulatory boards. Id. at xliv.Google Scholar

71 In recent years the California legislature has in one instance imposed a reduction in state bar dues and in another only approved a portion of the state bar dues increase request. See Board Sets Tentative 1982 Fees, 56 Cal. St. B.J. 168 (1981); At Last—State Bar Has a 1980 Dues Bill, 54 Cal. St. B.J. 394 (1979).Google Scholar

72 National Association of Bar Executives, Roster and By-laws 1981–82: State Bars (1982). More generally, 29 state bars (Alaska, Idaho, and South Dakota excluded as unrepresentative) had average maximum dues for 1981 of $115, while 22 voluntary state bar associations (West Virginia excluded) averaged $94. Id. Since state bar dues are often used to pay for discipline or other regulatory programs that are usually financed with separate fees in the voluntary states, the difference seems insignificant.Google Scholar

73 In California, e.g., 39% of the state bar's 1979 revenue came from sources other than dues. California Legislative Analyst, Report on the California State Bar 9 (Mar. 1980). In Wisconsin 56% of the state bar's revenue for fiscal 1981 came from nondues sources. Thirty-seven percent (37%) came from CLE program user fees, but that money can be used only to pay for CLE programs. See Annual Report, Wis. B. Bull., Nov. 1981, at 20.Google Scholar

74 These figures are derived from ABA Directory, supra note 57, table I.Google Scholar

75 For a recent state-by-state comparison of sources of disciplinary funding, see American Bar Association, Standing Committee on Professional Discipline, and National Center for Professional Responsibility, Statistical Report Re: Expense, Case Volume and Staffing of Lawyer Disciplinary Enforcement in State Jurisdictions During 1980, at chart I (Chicago: American Bar Association, rev. Dec. 1981) [hereinafter cited as Statistical Report].Google Scholar

76 Id. at chart II.Google Scholar

77 See Pound, supra note 5, at 253–69.Google Scholar

78 1 Rep. St. B. Ass'n Wis. 5, 6, 9 (1878) (opening address delivered by Edward G. Ryan, Jan. 9, 1878). Many years later, Ryan's speech was used to support bar unification. See Shea, Edmund B., The President's Annual Address, 35 Rep. St. B. Ass'n Wis. 4, 7 (1945). (“If Chief Justice Ryan were living in this age, would he not advocate adoption … of an integrated bar organization, for the identical reasons which he gave for his support of the voluntary organization?”).Google Scholar

79 Harley wrote: “The one great unit for bar organization is clearly seen to be the state itself. It is the state which established almost all the body of laws which concern the average practitioner. The state's highest court and its legislature make of the state a vital unit in government and law.”Harley, Herbert, State and Local Bar Associations, 13 J. Am. Judicature Soc'y 45 (1929). Given developments since 1929 in federal practice and in lawyer specialization, the state's preeminence as a unit for bar organization is no longer so clear. See Schwartz, M., The Reorganization of the Legal Profession, 58 Tex. L. Rev. 1269, 1271–72 (1980).Google Scholar

80 There was a brief and abortive attempt to unify the bar in Philadelphia County after the Pennsylvania State Bar Associations refused to pursue statewide unification in 1938. This was a special case, however, because Pennsylvania lawyers had to gain admission to practice not only at the state but at the county level as well. See Plan for Local Integrated Bar, 23 J. Am. Judicature Soc'y 126 (1939).Google Scholar

81 See Hurst, supra note 33, at 297–301.Google Scholar

82 See Larson, supra note 34, at 6.Google Scholar

83 Julius Henry Cohen, The Law: Business or Profession? 109 (rev. ed. New York: G.A. Jennings Co., 1924) (emphasis omitted).Google Scholar

84 See Jonathan Lurie, The Chicago Board of Trade 1859–1905: The Dynamics of Self-Regulation (Urbana: University of Illinois Press, 1979).Google Scholar

85 See, e.g., Bird, supra note 27, at 198–205; Bird, Remarks, 11 Rep. St. B. Ass'n Wis. 124, 130 (1915) (“In permitting our profession to degenerate into a private commercial business, we have well nigh forgotten our public responsibility as court officers”). For one famous Progressive's concern about close relationships between lawyers and large business clients, see Herbert David Croly, The Promise of American Life 136 (Cambridge: Harvard University Press, Belknap Press, 1965).Google Scholar

86 Bird, supra note 27, at 199.Google Scholar

87 Id. at 201, 203–4.Google Scholar

88 Julius Henry Cohen (supra note 83, at xvi), e.g., embraced the views of Felix Adler, founder of the Ethical Culture Society, that “the further solution of problems of ethics in industry, in business, and in the professions, must come from the … men who live with those problems; that it is not enough … to have a general philosophy of ethics, but that there must be daily application of the philosophy to the fact, and that this can best be done by the experts in the line.” Cohen also stated that “each vocation … must solve its own ethical problems.”Id. at 158 (emphasis omitted). For evidence of the widespread development of professional ethics codes in the Progressive Era, see the symposium, The Ethics of the Professions and of Business, Annals, May 1922.Google Scholar

89 See Report of the Committee on Professional Ethics, 39 ABA Rep. 559 (1914).Google Scholar

90 The New York County Lawyers Association issued the first ethics opinions in 1912. Gradually, most state associations, unified or not, and many local associations followed suit. See Finman, Ted, & Schneyer, Theodore, The Role of Bar Association Ethics Opinions in Regulating Lawyer Conduct, 29 U.C.L.A. L. Rev. 67, 69 n.4 (1981). In 1918 the American Judicature Society identified the New York County Bar concept of elaborating on ethical principles through ethics opinions as an important element in a satisfactory program of professional self-regulation. See Redeeming a Profession, supra note 45, at 109.Google Scholar

91 See Bird, supra note 27, at 201. This again was in sharp contrast to the medical societies, where the threat of expulsion could be a real deterrent to unethical medical practice because important economic benefits were tied to membership. See American Medical Association, supra note 53, at 949–53. Generally, the courts would not review medical society disciplinary decisions, including expulsions, because those decisions had no effect on a doctor's formal right to practice medicine. Thus, without unification, organized medicine could have an effective and autonomous disciplinary process.Google Scholar

92 Bird, supra note 27, at 201.Google Scholar

93 Id. Confidentiality was of course impossible once a disciplinary case was filed in court.Google Scholar

94 Id.Google Scholar

95 Id. at 203.Google Scholar

96 Harley wrote:. There must be somewhere in the state or society power to establish standards of professional conduct with responsibility for enforcing them. It is easy to understand the practical failure of the courts in this field. And it is too delicate a matter for legislative control. An enacted code of rules would merely invite unethical lawyers to devise loopholes in the law …. The public generally is most concerned with mere honesty and wants only to hold the lawyer to the standard necessary for the lay fiduciary…. But the public suffers a thousand times more from less conspicuous infractions than from plain dishonesty…. This is the situation in a measure with respect to all professions. Their practitioners deal in mysteries. They are not safely judged except by their colleagues. Herbert Harley, Group Organizations Among Lawyers, Annals, May 1922, at 33, 34, 39.Google Scholar

97 See, e.g., Harley, Herbert, A Lawyer's Trust, 29 J. Am. Judicature Soc'y 50, 52–54 (1945) (reprinting a speech delivered to the Lancaster County [Nebraska] Bar Association in December 1914).Google Scholar

98 For an account of the history of the Law Society of Upper Canada, emphasizing its recent loss of much of the autonomy from legislative and judicial oversight that once attracted Harley, see Mark M. Orkin, Professional Autonomy and the Public Interest: A Study of the Law Society of Upper Canada (J.D. thesis, York University [Toronto], 1972).Google Scholar

99 The act would have empowered a state bar to set qualifications for bar admission (subject to state supreme court approval), formulate binding rules of professional conduct, impose a range of disciplinary sanctions (subject to supreme court review only of suspensions and disbarments), and summon witnesses and compel production of evidence in grievance investigations. See Bar Assocation Act, supra note 45, at 118–21.Google Scholar

100 On the scope and development of the ABA role as an accreditation agency, see Sullivan, Russell N., The Professional Associations and Legal Education, 4 J. Legal Educ. 401 (1952); Note, ABA Approval of Law Schools: Standards, Procedures, and the Future of Legal Education, 72 Mich. L. Rev. 1134 (1974).Google Scholar

101 Only in California has the state bar played a significant role in accreditation, and even there the role is limited to determining which law schools can offer their students an exemption from a special preliminary bar examination requirement. See Corinne Lathrop Gilb, Hidden Hierarchies: The Professions and Government 59 (New York: Harper & Row, 1966). In recent years there has been some interest in using state bar associations as accrediting agencies for paralegal training programs, but as of 1981 the only states where this was being done were Iowa and Connecticut, states without a unified bar. See Haskell, Paul G., Issues in Paralegalism: Education, Certification, Licensing, Unauthorized Practice, 15 Ga. L. Rev. 631, 640 & n.32 (1981).Google Scholar

102 In 1890 the ABA recommended creation of statewide boards of bar examiners. By 1920 a majority of the states had such boards. Gilb, supra note 101, at 63. The boards were generally made up of lawyers appointed by the supreme court. See George E. Brand, Bar Associations, Attorneys and Judges: Organization, Ethics, Discipline 1037–71 (Chicago: American Judicature Society, 1956).Google Scholar

103 Redeeming a Profession, supra note 45, at 108.Google Scholar

104 See Brand, supra note 102, at 1037–71. The 1927 California State Bar Act gave the bar authority to set educational requirements for bar admission (subject to supreme court approval), but when the bar began to raise standards, this provision was repealed. See Glaser, The Organization of the Integrated Bar, supra note 25, at 20 n.*.Google Scholar

105 In 1925 the Wisconsin Supreme Court accepted the ABA Canons as guidelines in matters of professional responsibility. See Hepp v. Petrie, 185 Wis. 350, 200 N.W. 857 (1924). The canons were formally adopted as rules of court in Wisconsin upon unification in 1956, but by then they had been adopted in other states without unifying the bar. See Editorial Miscellany, Wis. B. Bull., June 1955, at 36 (noting that “the Supreme Court of our neighboring [voluntary bar] state of Minnesota has joined the growing number of states which have adopted the Canons of Ethics by court order”).Google Scholar

106 See Report of the Special Committee to Secure Adoption of the Code of Professional Responsibility, 97 ABA Rep. 268 (1972).Google Scholar

107 A Wisconsin Supreme Court rule provides: “The rules of professional conduct set forth from time to time in the Code of Professional Responsibility of the American Bar Association as supplemented or modified by pronouncements of the court, shall be the standards governing the practice of law in this state.” Wis. Sup. Ct. R. 10.14 (emphasis added).Google Scholar

108 See In re Creation of a Rule for Registration of Group Legal Services, 55 Wis. 2d xi (1972). This rule purported to define the circumstances under which a lawyer could participate in a group legal services arrangement. Subsection (2) provided that nothing in the rule was meant to prohibit group legal service plans from making “a statement in response to individual inquiries as to the identity of the … [lawyers] rendering or to render the services.”Id. at xii. This implied that lawyers could not participate in plans that identified participating lawyers for present or potential group members without a specific request for that information. But the United States Supreme Court had already held such plans to be constitutionally protected. See Brotherhood of R.R. Trainmen v. Virginia exret. Virginia State Bar, 377 U.S. 1 (1964); NAACP v. Button, 371 U.S. 415 (1963).Google Scholar

109 Compare Petition in the Matter of the Amendment of Section 256.294 Group Legal Services, Wis. B. Bull., Dec. 1976, at 45, with In re Amendment of Rule (Section) 256.294 Group Legal Servs., 77 Wis. 2d ix (1977).Google Scholar

110 Compare Petition: Amendment to the Code of Professional Responsibility, Wis. B. Bull., Oct. 1977, at 42, with In re Amendment to the Code of Professional Responsibility, 88 Wis. 2d xxix (1979).Google Scholar

111 In re Mandatory Professional Liability Protection for Attorneys, 83 Wis. 2d xlvii (1978). After the court set up its committee the state bar president expressed his disappointment that the court was “passing the problem off to one more committee” after a “well-qualified committee of the Bar had been studying the matter for more than two years.”Steil, George K., President's Page, Wis. B. Bull., June 1978, at 7. But however painstaking the bar's study may have been, the court's committee found that the bar had substantially underestimated the percentage of lawyers who had malpractice insurance. See Schneyer, Theodore J., Mandatory Malpractice Insurance for Lawyers in Wisconsin and Elsewhere, 1979 Wis. L. Rev. 1019, 1028 & n.35.Google Scholar

112 The committee recommended against mandatory insurance and the court took no further action. The court did eventually set up a client security fund. In re Establishment of Wisconsin Clients' Security Fund, 100 Wis. 2d xiii (1981).Google Scholar

113 In re Amendment of SCR Chapter 10 (State Bar Rules) (Wis. Sup. Ct. Jan. 19, 1983).Google Scholar

114 For evidence of recent trends toward greater public participation in state supreme court rulemaking, see Charles W. Grau, Judicial Rulemaking: Administration, Access and Accountability (Chicago: American Judicature Society, 1978).Google Scholar

115 Gilb, supra note 101, at 140.Google Scholar

116 Thus, in neighboring Iowa, the supreme court treats the voluntary state bar association's ethics committee as court “commissioners” for purposes of considering and recommending amendments to the court's rules on lawyer specialty designation. See In re Amendment to the Iowa Code of Professional Responsibility, 276 N.W.2d Adv. Sh. xxxvii, xxxviii (Iowa 1979), reprinted in News. Bull. Iowa St. B. Ass'n, Mar. 1979, at 9.Google Scholar

117 As of 1980, 91% of the state bars (30 of 33) and 65% (15 out of 23) of the voluntary state associations issued opinions. ABA Directory, supra note 57, at 29–32. With recent indications that state bars enjoy no automatic immunity as state agencies from federal antitrust liability for either ethics or unauthorized practice of law opinions that restrain trade (see Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Surety Title Ins. Agency, Inc. v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977), vacated, 571 F.2d 205 (4th Cir.), cert, denied, 436 U.S. 941 (1978)), some state bar ethics committees are being placed more directly under the control of state courts. See infra note 400. Such action was proposed in Wisconsin (see Board Actions, Wis. B. Bull., Apr. 1982, at 67) but rejected. In re Amendment of SCR Chapter 10 (State Bar Rules) (Wis. Sup. Ct. Jan. 19, 1983).Google Scholar

118 Report of Committee on Professional Ethics, Wis. B. Bull., June 1958, at 44–45.Google Scholar

119 Of 50 formal opinions reprinted recently in a special supplement to the Wisconsin Bar Bulletin, 29 cited ABA opinions, none disapprovingly. The Wisconsin opinions were issued from 1954 (shortly before unification) through 1977. See Ethics Committee Opinions: Formal Opinions, Wis. B. Bull., Bulletin Supplement, June 1979, 39–73.Google Scholar

120 According to the policies of one state bar ethics committee, “the reasoning and conclusions expressed in the opinions of the A.B.A. Committee will, in general, be regarded as highly persuasive precedent in our resolutions of identical or analogous ethical questions.” Arizona Ethics Opinions, 9 Ariz. B.J., Winter 1973–74, at 5,6. See also North Dakota Bar Association Ethics Committee, Informal Opinion 016 (Nov. 11, 1974) (“Although the Ethics Committee sees no outright breach of the Code … in the use of … Credit Cards, it is recommended that until a definitive opinion has been obtained from the American Bar Association [their] use … be suspended … in attorneys' offices”).Google Scholar

121 Unification advocates liked to compare the funding of discipline and other bar activities in the 1920s in North Dakota, where the bar was unified in 1921, with demographically similar but as yet unintegrated South Dakota. Not only did the North Dakota annual lawyers' fee in 1929 raise over three times more revenue ($3,425) than South Dakotas' state bar association dues ($940), but North Dakota spent four times as much on discipline. See Cost of Running State Bar, 13 J. Am. Judicature Soc'y 185 (1930).Google Scholar

122 At least “sixty times as many disbarments and suspensions” were said to have occurred in California in each of the first 8 years after unification as in all the previous 77 years. Public Opinion and Bar Discipline, 22 J. Am. Judicature Soc'y 24 (1938). See also Orie Leon Phillips & Philbrick McCoy, Conduct of Judges and Lawyers: A Study of Professional Ethics, Discipline and Disbarment 95–104 (Los Angeles: Parker & Co., 1952).Google Scholar

123 See In re Herron, 212 Cal. 196, 198, 298 P. 474, 480 (1931) (dissent).Google Scholar

124 Turrentine, Lowell, May the Bar Set Its Own House in Order? 34 Mich. L. Rev. 200, 202 (1935)Google Scholar

125 See id. at 211 & n.44.Google Scholar

126 In Michigan, e.g., bar unification legislation was defeated until 1935, when bar leaders supported a bill that assured a substantial role for the judiciary in lawyer discipline. See Rix, Carl, remarks, 25 Rep. St. B. Ass'n Wis. 172–73 (1935).Google Scholar

127 See ABA Directory, supra note 57, at 14, 20–21 (survey question 24).Google Scholar

128 On the private exercise of power delegated under the National Industrial Recovery Act of 1933, see Galambos, supra note 34, 173–279.Google Scholar

129 See Illinois Bar on Integration Route, 17 J. Am. Judicature Soc'y 21 (1933). The Chicago Bar Association was given disciplinary jurisdiction in Cook County; The Illinois State Bar Association, in the rest of the state. As for why there was no strong movement to unify the bar in Illinois in the 1930s, an Illinois State Bar Association president told Wisconsin lawyers: “You are undertaking something in Wisconsin which is important, but is impossible to Illinois, and that is an integrated bar. In Chicago we have 16 racial bar associations, the nordic, orthodox [J]ews, colored race and we have this and that. We couldn't expect to get an integrated bar for a long time, if ever.” Charles O. Rundall, speech, 29 Rep. St. B. Ass'n Wis. 72, 78 (1939). Ironically, the Madison Capital Times, always a crusader against unification, claimed in 1943 that some Wisconsin lawyers supported a unified bar in hopes of exercising greater control over the number and the “ambulance chasing” of Jewish lawyers in Milwaukee. See Editorials, Madison Capital Times, Mar. 16, 1943, at 16, May 11, 1943, at 20.Google Scholar

130 See M. J. Powell, Professional Self-Regulation: The Transfer of Control from a Professional Association to an Independent Commission, paper presented at the Annual Meeting of the American Sociological Association, Aug. 1976.Google Scholar

131 See Missouri Bar Considers Route to Integration, 18 J. Am. Judicature Soc'y 125 (1934). Not surprisingly, effective enforcement of bans on unauthorized practice of law became an inportant item for the organized bar in the Depression. Missouri's new approach was envied. A Wisconsin State Bar Association committee reported: “when you consider the fact that … the thousands of lawyers in [Missouri] pay their $3 a year into the fund, which is in effect a war chest that can be used to finance [UPL] investigations, … you can see how effective an instrumentality of that sort can be. “Report of the Committee on Unauthorized Practice of the Law, 26 Rep. St. B. Ass'n Wis. 86, 90 (1936).Google Scholar

132 See Missouri Bar, supra note 131, at 125.Google Scholar

133 See Hemker, Forrest M., Integrated Bar Created by Missouri Supreme Court, 28 J. Am. Judicature Soc'y 50 (1944).Google Scholar

134 See note 1 supra. It should be noted, however, that many voluntary bar states were slow to develop disciplinary machinery as effective as that which existed in the unified bar states. The ABA's influential 1970 report describing lawyer discipline around the country as a “scandalous situation” was in some states a major catalyst for disciplinary reform. See ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 1, 183–85 (Final Draft June 1970). For the impact in Pennsylvania, see Cantor v. Supreme Court, 353 F. Supp. 1307 (E.D. Pa. 1973).Google Scholar

135 Ironically, in 1977 when the Texas State Bar successfully fought to defeat legislation that would have discontinued the unified bar, it argued not that it spent more money per lawyer for disciplinary enforcement than is spent in voluntary bar states—the traditional unified bar claim—but that it spent less. See a State Bar of Texas memorandum, Should the State Bar of Texas Be Voluntary? Why Not? 2 (1977) (“Texas last year spent about $7 per lawyer to police the legal profession. Pennsylvania and Illinois, states with voluntary bars, averaged $30 and $17 respectively”). For a state-by-state comparison of per lawyer allocations for discipline in 1980, see Statistical Report, supra note 75, chart I. The average allocation was slightly higher in the voluntary states, but there was substantial variation within both the unified and voluntary state categories, and rather little variation within regions of the country. For example, Wisconsin and Michigan, unified bar states, allocated about $28 and $30, respectively, while nearby Indiana, Illinois, and Minnesota, voluntary bar states, allocated $30, $25, and $21, respectively. Id. No figure was available for Iowa.Google Scholar

136 See Horace Wilkie, The Role of the Supreme Court in Regulating the Ethics of Lawyers and Judges, Wis. B. Bull., Feb. 1976, at 23, 25.Google Scholar

137 Lurking here is a fascinating problem in public finance, but one with no special relevance to the unified bar. Financing occupational regulation through annual registration or license fees rather than from general tax revenues is usually justified on the grounds that only the members of the regulated occupation and their customers benefit from the regulatory program. One may argue, however, that all citizens benefit from lawyer regulation, not just as present or prospective clients, but as parties interested in the fair and effective administration of justice. On this analysis the “benefit principle” points to at least some general public financing of lawyer discipline. Other considerations complicate the matter, however. Most of the expense of enforcing lawyer discipline arises in investigating and prosecuting client grievances. See F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 U. 111. L.F. 193. From a benefit standpoint, this puts lawyer discipline on a very similar footing with, say, regulation of barbers. Moreover, the principle that the same public officials who exact funds for regulatory programs should be accountable for the quality of those programs would be violated by using general tax revenues to support lawyer discipline. Since many state supreme courts claim nearly exclusive authority to oversee the disciplinary process, see, e.g., State v. Cannon, 206 Wis. 374, 383,240 N.W. 441,445 (1932), legislatures can do little to assure that discipline is effectively administered. Accordingly, funding discipline exclusively through a court-imposed lawyer registration fee seems appropriate. In Wisconsin there has been a gradual shift toward this approach. When the bar was unified in 1956, state bar dues began to be used to finance some investigations, which reduced the expense of the legislatively funded Board of Bar Commissioners; however, disbarment and suspension proceedings before the court itself were still financed by legislative appropriation. See Lathrop v. Donohue, 10 Wis. 2d 230, 250, 102 N.W.2d 404, 414 (1960), aff'd, 367 U.S. 820 (1961). In 1976 the court assigned the disciplinary duties of both the state bar and the bar commissioners over to a new Board of Attorneys Professional Responsibility, funded by a levy on state bar members. See In re Regulation of the Bar, 74 Wis. 2d ix, xv (1976). And in 1981 the legislature provided that all aspects of lawyer discipline, even formal court proceedings, would have to be funded through such a levy. See Board of Attorneys Professional Responsibility Assessments Increase by Legislative Action, Wis. B. Bull., June 1981, at 8.Google Scholar

138 See, e.g., Garrison, Lloyd K., Experience of Other States with Incorporated Bars, 23 Rep. St. B. Ass'n Wis. 40, 45 (1933). Dean Garrison switched gears in 1934 and became one of the few unification advocates to concede that discipline had become an insignificant factor. He observed that “the disciplinary side of this whole business is entirely incidental and secondary. We have no great disciplinary problem in Wisconsin. I would be for unification, even if the bill contained no disciplinary features whatsoever.”Id., remarks, 24 Rep. St. B. Ass'n Wis. 140 (1934).Google Scholar

139 The court adopted rules for the state bar which were developed by a drafting committee of bar leaders. The committee sought to create an organization “as similar to the Wisconsin Bar Association” as possible, so that “the changeover from the voluntary to the involuntary organization will be … smooth and uncontroversial.” Robert D. Johns, The President's Page, Wis. B. Bull., Aug. 1956, at 5. The drafting committee accordingly decided:. to recommend no change … in the statutory functions of the State Bar Commissioners. Hence the authority of the district grievance committees … is limited to the investigation of charges of professional misconduct, and does not exceed the authority of grievance committees of existing voluntary bar associations except [that] members of the State Bar would be required to appear before association committees and answer questions in relation to charges of professional misconduct. Report of Drafting Committee, Wis. B. Bull., Oct. 1956, at 14, 15 (emphasis omitted).Google Scholar

140 See Wilkie, supra note 136, at 26.Google Scholar

141 In re Regulation of the Bar, 74 Wis. 2d ix, xv (1976). The court later made it clear that the purpose of this step “was to bring [discipline] administration under the direct control of this Court rather than having [it] under the State Bar.”In re Regulation of the Bar, 81 Wis. 2d xxxv, xliv (1977). From this premise the court concluded that the state bar should have no fiscal control over the Board of Attorneys Professional Responsibility and that the board should not be housed in state bar quarters, as the state bar would have preferred. Id. at xlv-xlvi. More recently, the court eliminated a vestige of state bar control over discipline, removing the bar's power to select the chief administrator of the board. In re Amendment of SCR 21.01(4)(a), 111 Wis. 2d xxv (1983).Google Scholar

142 Redeeming a Profession, supra note 45, at 109.Google Scholar

143 Other programs that might reasonably have been emphasized were not. For example, when Reginald Heber Smith wrote wistfully in 1919 of financing legal aid offices by having all lawyers contribute $5 a year, he never thought to express the idea as a reason for unifying the bar. See Reginald Heber Smith, Justice and the Poor 256 (memorial ed. Chicago: National Legal Aid and Defender Association, [1919] 1967). On the ultimately disappointing relationship between unification and improvements in legal aid, see infra notes 593–98 and accompanying text.Google Scholar

144 See, e.g., Sunderland, supra note 54, at 6. For a useful overview of what these terms have meant to American lawyers over the years, see Friedman, Lawrence M., Law Reform in Historical Perspective, 13 St. Louis U.L.J. 351 (1969).Google Scholar

145 The American Law Institute was founded in 1923 “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to carry on scholarly and scientific legal work.”Wechsler, Herbert, Restatements and Legal Change: Problems of Policy in the Restatement Work of the American Law Institute, 13 St. Louis U.L.J. 185 (1968). The institute has produced the Restatements of Law and various model codes.Google Scholar

146 See Paul, Charles H., The Judicial Council Movement, 10 J. Am. Judicature Soc'y 78 (1926). Judicial councils are expert bodies established by state legislatures to study and propose improvements in court procedure and practice. They often make recommendations for judicial rulemaking rather than for legislation. Commentators sometimes suggest that judicial councils play a more important role in their field than does the organized bar, but the two are rarely viewed as rivals. See Finley, Robert C., The Bare Bones of Court Reform, 13 St. Louis U.L.J. 171, 174–77 (1968).Google Scholar

147 Law revision commissions are the direct descendents of (then) Judge Cardozo's call in 1921 for “ministries of justice.” See Cardozo, Benjamin N., A Ministry of Justice, 35 Harv. L. Rev. 113 (1921). While judicial councils address procedural matters, the commissions are public bodies which study and propose improvements in the technical areas of substantive law. While most states have judicial councils, only seven had law revision commissions as of 1968. See MacDonald, John W., The New York Law Revision Commission: The Past and the Future, 13 St. Louis U.L.J. 258 (1968).Google Scholar

148 Thus, in 1929 the Judicature Society reported with barely concealed glee that the Association of the Bar of the City of New York, which opposed unification, had been almost completely unsuccessful from 1926 to 1928 in persuading the state legislature to pass its proposed law reform measures. Bar Association Ignored by Legislature, 13 J. Am. Judicature Soc'y 6 (1929). See also Vanderbilt, Arthur T., Past, Present and Future of the Legal Profession, 20 J. Am. Judicature Soc'y 208, 209 (1937) (“Where the bar is unified, it has a standing with the bench, the chief executive, the legislature and the public generally that it has nowhere else attained”).Google Scholar

149 Address of Hudnall, George B., President State Bar Association of Wisconsin, 12 Rep. St. B. Ass'n Wis. 77, 78 (1916).Google Scholar

150 See Stedman, John C., Activities of the Wisconsin Bar Association for the Improvement of the Administration of Justice and Government, 1926–1936, 9 Wis. B. Bull. 148 (1936).Google Scholar

151 For discussion of the problem see McKean, supra note 24, at 75. Upon its reorganization in 1948 the Wisconsin Bar Association hired a full-time executive director, Philip Habermann, who devoted a substantial portion of his time to legislative work. See Habermann, supra note 58.Google Scholar

152 Annual Report, supra note 73, at 20.Google Scholar

153 See, e.g., Alfred Z. Reed, Training for the Public Profession of the Law 225–30 (New York: Carnegie Foundation for the Advancement of Teaching, 1921).Google Scholar

154 See supra notes 36–58 and accompanying text. To be sure, none of today's voluntary statewide bar associations is a body reconstituted after the discontinuation of a unified bar. It is conceivable that in the wake of a discontinuation decision a number of small statewide associations, rather than one single association, would emerge. Toward 1970a few “counter bar” associations, usually consisting primarily of young and politically liberal lawyers, did develop in several large metropolitan areas. See Powell, Michael, Anatomy of a Counter-Bar Association: The Chicago Council of Lawyers, 1979 A.B.F. Res. J. 501. There have been no such developments at the state level, however, where any tendency for young lawyers to stand apart has been defused by the creation of semiautonomous young lawyers' sections within the statewide associations. See, e.g., In re Promulgation of a Supreme Court Rule Creating a Young Lawyers Division Within the State Bar, 71 Wis. 2d xi (1975). More recently in Wisconsin, two other types of lawyers who have tended to be dissatisfied with state bar services—government and nonresident lawyers—were given separate divisions within the bar. In re Amendment of State Bar Rules and Bylaws, 98 Wis. 2d xi (1980). Presumably, similar devices could be used to maintain a broad-based voluntary statewide association in Wisconsin.Google Scholar

155 Lathrop v. Donohue, 10 Wis. 2d 230, 239, 102 N.W.2d 404, 409 (1960), aff'd, 367 U.S. 820 (1961).Google Scholar

156 In 1965, the Wisconsin Supreme Court granted a state bar petition to amend bar rules to allow sections and committees publicly to express their opinions on' ‘matters other than substantial issues of public policy” without board approval. Supreme Court Amends State Bar Rules, Wis. B. Bull, June 1965, at 43.Google Scholar

157 In re Regulation of the Bar, 81 Wis. 2d xxv, xl, li (1977). In the District of Columbia Bar, the divisions (sections) have come to have great position-taking latitude and the board almost none, on the theory that “division membership is voluntary” but there is no' ‘possibility of voting with your feet for those who disagree with an opinion expressed in the name of the entire bar.” D.C. Bar Members Rein-in Board Opinions, B. Leader, Jan.-Feb. 1977, at 9, 10 (quoting D.C. Bar past president Charles Work).Google Scholar

158 The Wisconsin State Bar's legislative counsel estimated in 1977 that during a typical legislative session the board takes a position on 10–15 bills while sections or committees take positions on another 35–40. Counsel also estimated that he spent twice as much time lobbying on behalf of sections and committees as he spent on behalf of the board. See Parnell Report, supra note 27, app. C-3, at 4–5.Google Scholar

159 Albert E. Blashfield, Is Bar Integration Worth the Candle? Wis. B. Bull., Oct. 1955, at 8, 65.Google Scholar

160 See supra note 154.Google Scholar

161 By ch. 404, 1929 Wis. Laws, the legislature gave the supreme court authority to make and amend rules governing court procedure and practice and created an advisory committee to study, draft, and recommend proposed rules to the court. Committee members included the attorney general, the revisor of statutes, the chairmen of the senate and assembly judiciary committees, a member of the Boards of Circuit and County Judges, and the president and three members of the Wisconsin State Bar Association. The committee was a prototype for the Judicial Council, established in 1951. See Wisconsin Takes a Long Step Forward, 13 J. Am. Judicature Soc'y 71 (1929).Google Scholar

162 59 [Wis.] Op. Att'y Gen. 215 (1970).Google Scholar

163 1971 Wis. Laws ch. 79, repealed by 1977 Wis. Laws ch. 278, § 33.Google Scholar

164 Claire B. Bird, reporting for the Committee on Unified Bar, 24 Rep. Wis. St. B. Ass'n 117–18 (1934). Statements like this were sometimes buttressed with the assertion that since lawyers are “officers of the court” and take an oath when admitted to practice, they approach legislative questions with the disinterestedness expected of public officials. See, e.g., Bar Integration Wins, 3 J. Am. Judicature Soc'y 148 (1920).Google Scholar

165 While Bird may have been right about the bar's role in, and the effect of, workers' compensation legislation, other bar positions seem clearly consistent with lawyers' pocketbook interests, such as the Wisconsin State Bar's position in the 1970s on no-fault automobile insurance legislation. See infra notes 181–86. On many matters bar positions have no clear connection with lawyers' economic welfare (e.g., bar support for merit selection of judges or the creation of intermediate appellate courts).Google Scholar

166 State Bar of Texas memorandum, supra note 135, at 6.Google Scholar

167 Corine Gilb has written that to be effective any professional association “must … create an aura of impartial service to the commonweal …. The established association cannot afford to stress narrowly and manifestly self-interested legislation. A form of ‘public interest' permeates the lawmaking process even in its private stages.” Gilb, supra note 101, at 153. She goes on to report that as early as 1919 the ABA, a private bar association, resolved “that in making recommendations affecting American social and economic affairs, it was a quasi-public association, and therefore its committees considering recommendations should hold full public hearings and make their proceedings open to the public.”Id. at 216. More recent evidence that private bar associations are at least perceived as approaching legislative issues in a disinterested spirit is the fact that such associations sometimes attained charitable status for federal income tax purposes at a time when legislative activity normally precluded that status. See Dulles v. Johnson, 273 F.2d 362, 367 (2d Cir. 1959), cert, denied, 364 U.S. 834 (1960) (the associations' legislative recommendations “are not intended for the economic aggrandizement of a particular group”).Google Scholar

168 See, e.g., In re Regulation of the Bar, 81 Wis. 2d xxxv, xl (1977) (“The guiding principal [sic] of the Bar in its legislative activities … must always be the public interest”).Google Scholar

169 Lathrop v. Donohue, 10 Wis. 2d 230, 240, 102 N.W.2d 404, 410 (1960), aff'd, 367 U.S. 820 (1961).Google Scholar

170 In re Florida Bar Bd. of Governors' Action, 217 So. 2d 323, 325 (Fla. 1969) (Hopping, J., concurring) (Court should not second guess the position taken by the board of governors because to do so would only substitute its beliefs for the board's).Google Scholar

171 Steven A. Levine, Open Up the Supreme Court, Wis. B. Bull., Oct. 1980, at 51, 52.Google Scholar

172 Herbert Harley made this claim as early as 1924:. Opponents may urge that it is dangerous to permit the bar to attain such integration that it can swing its influence for or against any measure. [But o]n public questions the bar inevitably divides. It has always been so and always will be so …. This means that bar integration will have no effect in the field of public debate…. and the association will necessarily restrict its interest to the problems of technical law and judicial administration …. In all other countries the bars are integrated and nowhere are they accused of political interference. Harley, supra note 46, at 79.Google Scholar

173 Other courts have occasionally considered the subject matter limits of their state bar's legislative work. In 1969, e.g., the Florida court upheld the authority of its state bar to advocate a new state constitution. In re Florida Bar Bd. of Governors' Action, 217 So. 2d 323 (Fla. 1969). In a concurring opinion, Justice Hopping wrote:. The test as to whether or not The Florida Bar should engage in a particular activity is not whether the activity is “political” in nature or directly connected with the administration of justice. The true test is whether the matter is of great public importance, and whether lawyers, because of their training and experience, are especially fitted to evaluate the same. If a matter vitally affects the public and lawyers are peculiarly fitted to evaluate it, it is not only the right but the duty of the Bar as a professional organization to make such evaluation and advise the public of its conclusions. Id. at 324–25. This “test” of a state bar's authority would seem to go far beyond technical matters. It is also considerably different from the limits set by the Wisconsin courts. See infra text accompanying notes 176–77.Google Scholar

174 Lathrop v. Donohue, 10 Wis. 2d 230, 239, 102 N.W.2d 404, 409 (1960), aff'd, 367 U.S. 820 (1961).Google Scholar

175 Id. at 240, 102 N.W.2d at 410.Google Scholar

176 Id. at 239, 102 N.W.2d at 409.Google Scholar

177 In re Regulation of the Bar, 81 Wis. 2d at xxxix-xl (1977). State bar research on substantive law problems is also to be limited to “technical” fields. See Wis. Sup. Ct. R. 10.02(2). Whether a unified bar should address substantive law issues at all is an old question and one on which Herbert Harley appears to have been of two minds. In 1924 he argued that in addition to its “more obvious” duty to “secure improvements in the procedural law and the machinery of justice,” the unified bar had a duty “to modernize and clarify the great body of substantive law.” Harley, supra note 46, at 80. But in 1938, the Judicature Society quoted a California State Bar committee report opposing state bar position taking on matters “not in the procedural field” and called this “the necessary policy of all official, inclusive state bars.”Scope of Integrated Bar's Public Interests Defined, 22 J. Am. Judicature Soc'y 23 (1938).Google Scholar

178 See Parnell Report, supra note 27, app. C-3, at 6.Google Scholar

179 Lathrop v. Donohue, 10 Wis. 2d at 243, 102 N.W.2d at 411.Google Scholar

180 In June 1970 the board of governors rejected a proposed resolution calling for the withdrawal of American troops from Southeast Asia and instead resolved “that it is not pertinent to the purposes of the State Bar of Wisconsin, as set forth in its Rules and By-laws, to adopt any … official position with respect to United States involvement, military or otherwise, in Southeast Asia or elsewhere in the world.” With the Board of Governors, Wis. B. Bull., Aug. 1970, at 7. The board was apparently not swayed by the argument that the Vietnam War was adversely affecting the administration of justice in the United States and that bar organizations must surely have the authority to address the great questions of the day. See Steve Kreisman, State Bar Governors Kill Anti-War Stand, Madison Capital Times, June 17, 1970, at 1, col. 4.Google Scholar

181 See Parnell Report, supra note 27, app. C-3, at 7.Google Scholar

182 The absence of any interested pressure groups has been cited as a desirable test for a bar association to use in selecting law reform work. One commentator justified the Wisconsin State Bar's work on property law revision in the 1960s this way:. The final factor which has served to render the statutes obsolete in many respects is the lack of any interested pressure group. Legislatures are busy …. They respond to the most pressing needs. In some areas there are institutions which can present legislation (insurance companies, credit unions, labor unions, banks, etc.). But in the whole field of private law there are dozens of small people for whom problems occur once in a lifetime and for whom there is no effective voice. It is in this area that the State Bar has entered. Effland, Richard W., Status Report on the Bar Research Project on Revision of the Property Statutes, Wis. B. Bull., Dec. 1962, at 22, 26.Google Scholar

183 Walter J. Blum & Harry Kalven, Jr., Public Law Perspectives on a Private Law Problem: Auto Compensation Plans (Boston: Little, Brown & Co., 1965).Google Scholar

184 See Widiss, Alan I., Massachusetts No-Fault Automobile Insurance: Its Impact on the Legal Profession, 56 B.U.L. Rev. 323 (1976).Google Scholar

185 The Wisconsin Judicial Council is not an association, has no constituency, and consists, by design, of a cross-section of experts, most of whom are public officials. See Wis. Stat. Ann. § 758.13 (West 1981). See also supra notes 146, 161.Google Scholar

186 Spencer L. Kimball, Automobile Accident Compensation Systems—Objectives and Perspectives, in Robert E. Keeton, Jeffrey O'Connell, & John H. McCord, eds., Crisis in Car Insurance 10, 23 (Urbana: University of Illinois Press, 1968).Google Scholar

187 One can make the same criticism of state bar position taking in certain judicial rulemaking proceedings (e.g., on lawyer advertising) or in amicus briefs such as the one filed by the Wisconsin State Bar in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). That brief argued, contrary to the ultimate decision in the case, that bar association minimum fee schedules did not violate the Sherman Act. See Warren H. Resh, The Centennial of the Organized Bar in Wisconsin Part VII, Wis. B. Bull., July 1978, at 31, 33.Google Scholar

188 Justice Frankfurter suggested at the oral argument in Lathrop v. Donohue, 367 U.S. 820 (1961), that Wisconsin lawyers “must get a great sharpening of the mind determining what is or what is not administration of justice.” Quoted in McKean, supra note 24, at 57. For evidence of disagreement as to the scope of the Wisconsin State Bar's position-taking authority under the Wisconsin Supreme Court's guidelines, see, e.g., Axel v. State Bar, 21 Wis. 2d 661, 124 N.W.2d 671 (1963) (court divided over propriety of a state bar membership poll on the qualifications of a judicial nominee; no such polls have been conducted since); Letter from John R. Devitt to the Wisconsin State Bar President, Wis. B. Bull., Apr. 1973, at 53 (protesting that state bar proposal concerning the waiting period for remarriage after divorce did not pertain to a “technical field” of substantive law). By contrast, the ABA's long-standing “policy of noninvolvement in political and … controversial issues unless they relate directly to the administration of justice,” which is not a legal constraint but only a rule of thumb intended to avoid internal disputes, seems not to hamper ABA decision making. See Powell, Lewis F. Jr., The President's Page, 51 A.B.A.J. 101 (1965). For an interesting survey of early ABA decisions to address or not to address issues in antitrust, labor law, taxation, and other fields of public law, see M. Louise Rutherford, The Influence of the American Bar Association on Public Opinion and Legislation 286–329 (Philadelphia: Foundation Press, 1937).Google Scholar

189 In 1963, e.g., bills were introduced in Wisconsin and other states calling for a constitutional convention to provide for a “court of the union” which could override decisions of the Supreme Court, to make the election of state legislatures exclusively a state concern, and to create an additional method for amending the United States Constitution. The Wisconsin State Bar president announced that despite the public significance of these bills the state bar could take no position on them. Francis J. Wilcox, The President's Page, Wis. B. Bull., Aug. 1963, at 5.Google Scholar

190 See supra note 175 and accompanying text.Google Scholar

191 Voluntary statewide associations coexist with state bars only in four jurisdictions. See supra note 1.Google Scholar

192 Lathrop v. Donohue, 367 U.S. 820, 863 (1961).Google Scholar

193 On the Burkean view, see Hanna Fenichel Pitkin, The Concept of Representation 168–89 (Berkeley: University of California Press, 1967).Google Scholar

194 When the Law Reform Committee of the Association of the Bar of the City of New York reported in 1928 that it might be necessary to employ “an expert lobbyist to get its law reform proposals enacted, it elicited an angry response from the editors of Law Notes: “‘legislative agents’ are becoming a positive menace to our system of government and while nothing is to be feared from an agent of the bar association, the effect of participation by the bar in a system of such potential evil cannot be viewed with unmixed satisfaction.”Quoted in Bar Association Ignored, supra note 148, at 6. Similarly, a 1937 study of the ABA's legislative program found that in contrast to the Anti-Saloon League, the United States Chamber of Commerce, and the American Federation of Labor, the ABA had so far refused to maintain lobbyists in Washington. See Rutherford, supra note 188, at 361–62, 376–77.Google Scholar

195 See 35 Rep. St. B. Ass'n Wis. 7 (1945), 176 (1946).Google Scholar

196 Garrison, Remarks, supra note 138, at 140; id., Experience, supra note 138, at 46.Google Scholar

197 See Robert D. Johns, The President's Page, Wis. B. Bull., June 1957, at 7.Google Scholar

198 John C. Whitney, The President's Page, Wis. B. Bull., Oct. 1961, at 5.Google Scholar

199 Id., The President's Report, Wis. B. Bull., Aug. 1962, at 39, 41.Google Scholar

200 See Report of Committee on Research Planning, Wis. B. Bull., June 1966, at 39, 40; Id., Feb. 1970, at 7.Google Scholar

201 See Parnell Report, supra note 27, at 20.Google Scholar

202 See Annual Report, supra note 73, at 20, 31.Google Scholar

203 The state bar established its LAWPAC with the understanding that its activities would be funded by voluntary contributions, not by mandatory dues. See Actions of the Board, Wis. B. Bull., Oct. 1978, at 43, 44. LAWPAC became active in the fall of 1980, when it offered support to 73 candidates, 43 of whom accepted. LAWPAC and the 1981 Legislature, Wis B. Bull., Jan. 1981, at 12. In June 1981 the state bar terminated the arrangement whereby its board of governors appointed LAWPAC's board. See Board Actions, Wis. B. Bull., July 1981, at 37. Whether this action was taken because the bar board was considered unrepresentative of LAWPAC's contributors or because the arrangement was thought inappropriate for a unified bar is unclear. But there is evidence that in other respects state bar and LAWPAC business and personnel have not been segregated, and the state bar has been criticized for this. See Kelly Report, supra note 27, at 18. For the reaction of the Wisconsin Supreme Court, see infra note 205. As of 1980, four voluntary state bar associations (Arkansas, Illinois, Minnesota, and Ohio) had set up LAWPACs, as had four other unified bars (Michigan, South Dakota, Utah, and Washington). See ABA Directory, supra note 57, at 20–23. A LAWPAC was created in Florida in 1976, but not on the initiative of the state bar. Letter from Duane Anderson, Chairman of FLALAWPAC, to Assistant Dean Edward Reisner, University of Wisconsin Law School, May 13, 1977.Google Scholar

204 LAWPAC Committee Report to Executive Committee, Wisconsin State Bar Board of Governors 1–2 (June 1, 1978).Google Scholar

205 In one respect the court has intervened. Having once expressed “concern” about the state bar's ties to LAWPAC (In re Discontinuation of the State Bar, 93 Wis. 2d 385, 387, 286 N.W.2d 601, 602 (1980)), the court recently forbade the state bar, “funded as it is by compulsory member dues, to participate to any extent in LAWPAC or in its activities.” Report of Comm. to Review the State Bar, slip op. at 9 (Wis. Sup. Ct. June 1983) (per curiam). At the same time, however, the court ruled that state bar legislative activities must no longer be funded through compulsory dues, and it promised to set up a rebate procedure for the benefit of bar members who object to having their dues used for such purposes. Id. at 6–7. The two actions seem inconsistent.Google Scholar

206 See In re Regulation of the Bar, 81 Wis. 2d xxxv, xxxix (1977).Google Scholar

207 In fiscal 1980 the state bar appropriated only $7,500, or 1% of its expected expenditures, for research. See January 1980 Assembly of Members: Meeting Notice and Agenda, Wis. B. Bull., Jan. 1980, at 6, 7. The research involved both an analysis of nonbar proposals to make Wisconsin a community property state and, ultimately, the drafting of an alternative state bar bill on the subject. By April 1982 the state bar had spent over $20,000 on advocacy of that bill before the legislature. Memorandum from Stephen L. Smay, Executive Director, Wisconsin State Bar, to Supreme Court Committee to Review the State Bar, Apr. 2, 1982.Google Scholar

208 Its effectiveness may be further reduced if requiring lawyers to contribute against their will to lobbying and related activities proves to be unconstitutional, an issue currently being litigated in other states. See infra notes 327–29, 339–89 and accompanying text.Google Scholar

209 The state bar board of governors does include three nonlawyers appointed by the supreme court. See supra note 15. But placing a nominal number of “public representatives” on the boards of limited constituency organizations, if it has any effect, may simply obscure the fact that the organization has only a partial grasp of the public interest. Henry S. Kariel, The Decline of American Pluralism 264–65 (Stanford, Cal.: Stanford University Press, 1961). On the complications resulting from placing “public representatives” on the board of governors of the California State Bar, see infra text accompanying notes 403–17.Google Scholar

210 Harley, Herbert, Does $3 a Year Mean Regimentation? 13 Fla. B.J. 39, 41 (1939).Google Scholar

211 Cohen, Julius Henry, The National Call for the Organization of an All Inclusive Bar, 4 N.Y.L. Rev. 135, 145 (1926).Google Scholar

212 Petition of Fla. State Bar Ass'n, 40 So. 2d 902, 908 (Fla. 1949). The Florida court unified the bar for this reason and not “as a specific for unethical conduct.”Id.Google Scholar

213 Quoted in William D. Guthrie, Review of the Proposed Compulsory Incorporation of the Bar of the State of New York and the Gibbs Bill 40 (Association of the Bar of the City of New York, 1926). Concerned about the same “influx,” Guthrie drew a very different conclusion on the unified bar question:. To assume that the sentiments and standards of thousands of citizens of foreign birth or recent foreign origin will be changed merely by compulsory incorporation with other citizens into one body … is to disregard all past experience…. Experience demonstrates that the tendency of such forced absorptions or attempts at compulsory uplift has generally been for the lower elements to pull down the upper, rather than to be themselves elevated. Id. at 41–42.Google Scholar

214 Quoted in Bar Integration Wins, supra note 164, at 150.Google Scholar

215 Report of the Committee on State Bar Organization, ABA Conference of Bar Delegates (St. Louis, Aug. 24, 1920), reprinted in To Speed Bar Organization, 4 J. Am. Judicature Soc'y 83, 87 (1920).Google Scholar

216 Cohen, supra note 83, at 333, quoting R. H. Tawney. In much of his writing Cohen emphasized the moderating influence and positive value of cooperation among all members of an occupation. He was a strong believer in trade associations and argued against the rigid application of antitrust laws to the cooperative efforts of business competitors. See, e.g., Cohen, Julius Henry, Ice, 13 B.U.L. Rev. 1 (1933). His views on the social benefits of occupational associations and, in particular, on the value of a universal membership bar organization remarkably parallel the views of his contemporary, French sociologist Emile Durkheim. See Emile Durkheim, Professional Ethics and Civil Morals 5–14 (Glencoe, Ill.: Free Press, 1958).Google Scholar

217 Each member, Cohen said, would be “called upon to express his opinons” and “entitled to vote for the [association's] officers,” and “the opportunity will awaken in him some new sense of responsibility.” Cohen, supra note 211, at 145.Google Scholar

218 Thus, the typical labor union member is “only infrequently involved in union affairs; attendance at regular meetings, for example, tends to be around 5–10% for most locals.” Moe, supra note 44, at 174.Google Scholar

219 Statement of Dean Brayton, an early president of the Utah State Bar, quoted in Spirit of Integration Conspicuous in New Utah State Bar, 16 J. Am. Judicature Soc'y 6 (1932).Google Scholar

220 For the voting statistics, see Johns, Robert D., President's Report: A Year of Progress, Wis. B. Bull., Aug. 1957, at 15, 17.Google Scholar

221 Cross, Clyde C., The President's Page, Wis. B. Bull., June 1972, at 5.Google Scholar

222 Until recently section membership has been free to Wisconsin State Bar members and, not surprisingly, has been high. See Wisconsin Bar 1981 Annual Report, in Wis. B. Bull., Nov. 1981, at 19, 24. The figure cited in the text presumably refers to active involvement in section affairs, not to mere membership.Google Scholar

223 Thomas J. Curran, The President's Page, Wis. B. Bull., June 1973, at 5, 6.Google Scholar

224 1981 Annual Report, supra note 222.Google Scholar

225 Political scientist James Q. Wilson points out that an association's effectiveness can depend as much on recruiting an active core of members as it does on overall membership. Active members are recruited in part by “specific solidary incentives,” intangible honors such as elective office that by definition cannot be given to every member. Wilson, supra note 50, at 34.Google Scholar

226 As of 1980, the Minnesota State Bar Association had 7,716 members, the State Bar of Wisconsin 11,516. ABA Directory, supra note 57 at 5, 7.Google Scholar

227 The Minnesota association has the usual officers, a house of delegates, and a 39-member board of governors. See Minnesota State Bar Association Articles, Bylaws, Rules, Bench & B. Minn., Sept.-Oct. 1981, at 287, 289–91; Board of Governors, id., at 26–27. The Wisconsin State Bar has no house of delegates but has almost the same number of officers and board members. See Wis. Sup. Ct. R. 10.04, 10.05. The Minnesota association had at least twice the 310 committee members that the Wisconsin State Bar reported for 1981. See Committees 1981–82, Bench & B. Minn., Sept.-Oct. 1981, at 28–37. As for sections and divisions, the Minnesota association had 16 in 1981, the Wisconsin State Bar, 13. See Sections and Affiliated Associations, id., at 9–12; Annual Report, supra note 73, at 19, 24.Google Scholar

228 This is not to say that state bar journals have no value as a source of professional notices and technical information. They clearly do. And since they are circulated to all lawyers in the state, they may be more useful in these respects than voluntary state bar association journals. With their built-in greater circulation, they may also attract greater advertising revenues and be produced at lower unit costs. The question remains, however, whether these considerations are important enough to affect public policy decisions concerning compulsory bar membership.Google Scholar

229 Frankel, Marvin E., The Alabama Lawyer, 1954–1964: Has the Official Organ Atrophied? 64 Colum. L. Rev. 1243, 1254 (1964).Google Scholar

230 Id. at 1249.Google Scholar

231 Id. at 1255.Google Scholar

232 Id.Google Scholar

233 Id. at 1256.Google Scholar

234 Id. at 1243 n.*.Google Scholar

235 Radical Lawyers Caucus v. Pool, 324 F. Supp. 268, 269 (W.D. Tex. 1970). Somehow, these considerations had not stopped the editors in the same period from publishing a state bar committee resolution “supporting] our Commander-in-Chief in his efforts to bring the Viet Nam conflict to an honorable and successful conclusion and … deploying] the public demonstrations of those whose actions give aid and comfort to the enemies of our Republic.”Id.Google Scholar

236 Id. at 270. The precise issues in Pool have not been raised in other cases. But nothing in related cases puts the vitality of the Pool decision in doubt. In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the court held by a 5–4 vote that a city-owned transit system may reject political ads while accepting commercial ones. Four justices found that the advertising was part of a commercial venture rather than a public forum, so that “the managerial decision to limit … space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation.”Id. at 304 (Blackmun, J.). But in a crucial concurring opinion, Justice Douglas treated “the right of the commuters to be free from forced intrusions on their privacy” as the reason not to regard city bus advertising space as a public forum. Id. at 307. Since all lawyers must belong to a state bar, one might argue that they constitute a captive audience for journal ads and that by analogy to Lehman, state bar journals may therefore reject political or otherwise controversial ads. Clearly, however, Justice Douglas himself would have rejected the analogy, for he distinguished the commuter, who as a practical matter cannot escape exposure to bus ads, from “one who tunes in on an offensive program at home [and] can turn it off … as he wishes.”Id. quoting his dissent in Public Utils. Comm'n v. Pollak, 343 U.S. 451, 469. Cf. United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114 (1981) (mailbox not a public forum even though it is government property used for the communication of information); Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033 (5th Cir. 1982) (public television station required by Communications Act to exercise programming discretion is not a public forum); Avins v. Rutgers, State Univ. 385 F.2d 151 (3d Cir. 1967), cert, denied, 390 U.S. 920 (1968) (state university law review may exercise editorial discretion in choosing articles); Lee v. Board of Regents of State Colleges, 306 F. Supp. 1097 (W.D. Wis. 1969), aff'd, 441 F.2d 1257 (7th Cir. 1971) (campus newspaper at state college may not discriminate among political subjects in accepting ads).Google Scholar

237 In 1974, e.g., the state bar published together two pieces taking fundamentally different positions on the role of the state bar and the proper use of its funds. Compare Shirley S. Abrahamson, The State Bar Approaches the Age of Majority and Is Already Loaded, Wis. B. Bull., Apr. 1974, at 46, with opinion of Special Counsel Warren Resh, Wis. B. Bull., Apr. 1974, at 39 [hereinafter cited as Resh opinion].Google Scholar

238 In September 1978, the Bar Bulletin promised a regular letters to the editor section. WISBAR Newsletter, Wis. B. Bull., Sept. 1978, at 1. One of the first letters published thereafter complained about the Bar Bulletin's failure to serve as a forum on controversial issues. See Kenna del Sol, Open Letter to the Editor, Wis. B. Bull., Feb. 1979, at 50.Google Scholar

239 See Actions of the Board, Wis. B. Bull., Nov. 1977, at 40.Google Scholar

240 See Schedule of Minimum Fees, State Bar of Wisconsin, Wis. B. Bull., Oct. 1957, at 9 (lawyers “not only entitled to fair compensation for their services but must receive such compensation … so that they can fairly and freely carry out their duties as administrators of justice”); Habermann, Philip S., Twelve Steps to Prosperity, Wis. B. Bull., Dec. 1959, at 25, 26; Herb Terwilliger, The President's Page, Wis. B. Bull., Apr. 1960, at 5, 6 (“fee schedule … an important part of the broad program to improve legal service … by attracting top men and women”). Fee Schedule Poll Report, Wis. B. Bull., Dec. 1965, at 19, 20 (substantial recent increase in Wisconsin lawyer income “due to a considerable extent to the acceptance of a fee schedule”). The Wisconsin State Bar staff clearly had notice by 1967 of questions in the Justice Department about the antitrust implications of the Wisconsin minimum fee schedule. See Resh, supra note 187, at 33. The Bar Bulletin made no mention of the matter, however, until 1973, when the state bar abruptly abrogated its fee schedule. See Curran, Thomas J., President's Annual Report, Wis. B. Bull., Oct. 1973, at 8, 11.Google Scholar

241 See, e.g., Zirbel, Irving W., When Is Ambulance Chasing Not Ambulance Chasing Wis. B. Bull., Feb. 1965, at 74, criticizing the decision in Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964) (“[w]hen the Bar suffers the next staggering loss, … the time will be upon us when the average practitioner will find his practice drying up”); Cedarquist, Wayland B., Lawyers at the Crossroads: Profession or Trade Wis. B. Bull., Oct. 1966, at 35 (BRTcase should be read narrowly; group plans contrary to public interest); Frank Hamilton, The President's Page, Wis. B. Bull., Feb. 1968, at 5, 7 (“Is the … Supreme Court … decreeing the demise of the general practitioner?”).Google Scholar

242 The Bar Bulletin first gave attention to this issue in 1966. In that year the state bar president reported that the federal Office of Economic Opportunity had assumed an affirmative role in the delivery of legal services to the poor. “But,” he continued, “when they attempted thereby to destroy the constitution and fundamental client-attorney relationship [by supporting the concept of legal services offices with full-time, salaried staff attorneys], the Board of Governors of the State Bar of Wisconsin became much concerned.” Donald C. O'Melia, President's Annual Report, Wis. B. Bull., Aug. 1966, at 20. The state bar reacted by developing the Wisconsin Judicare program (a voucher system allowing eligible parties to choose their own lawyer), whose advantages, according to O'Melia, “far outweigh the disadvantages, and particularly, the neighborhood law office approach.”Id. at 21. Years later, in 1978, the Bar Bulletin reported that the state bar had “reaffirmed its support of the Judicare concept” and called on the Legal Services Corporation to make an “objective study” before allocating further money to Wisconsin staff programs. McNulty, Truman Q., The President's Page, Wis. B. Bull., Nov. 1978, at 7, 10. See also State Bar of Wisconsin Annual Report, Wis. B. Bull., Oct. 1980, at 36, 39.Google Scholar

243 Friedman, supra note 3, at 496–97. “Friendly” licensing, according to Friedman, “was a relatively novel phenomenon which grew rapidly between 1890 and 1910.”Id. at 497.Google Scholar

244 Interestingly, in North Dakota, the first state to unify its bar, the bar association took the initiative only after the legislature passed an “unfriendly” licensing measure in 1919. That measure created a board, whose members were to be appointed by the governor, to conduct bar examinations and administer lawyer discipline. The board was funded by a $15-a-year tax on every lawyer. According to one commentator: “The lawyers were furious. They had not been consulted and looked on the act as a gratuitous insult to the profession. The six attorneys who were legislators had been powerless to stop the bill, and had been subjected to the indignity of being compelled to listen to a series of speeches excoriating all lawyers. The tax was soon labelled the ‘dog tax,’ and the lawyers in North Dakota concluded that if they had to pay it, they at least ought to get some of it back for bar purposes.” Swisher, supra note 41, at 27. In 1921, at the bar's request, the legislature created a unified bar. It was thought that only such a bar organization could legally receive a portion of the tax funds collected from lawyers. See McKean, supra note 24, at 41–44.Google Scholar

245 James Maxwell Murray, remarks, 31 Rep. St. B. Ass'n Wis. 10, 11 (1941).Google Scholar

246 Before 1934 bar unification was purely by statute. In that year Kentucky inaugurated the practice of unifying the bar through a brief statute authorizing the state supreme court to create a state bar and make rules for its governance. In 1937 Nebraska became the first state to unify its bar purely by court rule. This soon became the preferred method, and since 1945 only the Alaska legislature has played a role in unifying a bar. See Parness, supra note 4, at 3–4.Google Scholar

247 Progressives blocked an effort to override a veto of a unification bill in 1935 and defeated bills in 1937 and 1939. See Sheldon W. Hoenig, Politics of Bar Integration 65–67 (master's thesis. University of Wisconsin, 1961). For voting statistics that show a strong Progressive alignment in the Wisconsin legislature against bar unification as late as 1941, see Edmund B. Shea, reporting for the Committee on Integration, 31 Rep. St. B. Ass'n Wis. 7, 8 (1941).Google Scholar

248 Gabriel J. Tolan, Hunt Pours Fire on State Bar Measure, Madison Capital Times, May 7, 1935, at 2, quoting State Senator Walter Hunt, Progressive from River Falls.Google Scholar

249 Editorial, Madison Capital Times, June 30, 1935, at 22.Google Scholar

250 See Statutory Organization for Louisiana Bar, 18 J. Am. Judicature Soc'y 110 (1934).Google Scholar

251 See Bar Integration Progress in 1941, 25 J. Am. Judicature Soc'y 44 (1941).Google Scholar

252 See infra notes 403–17 and accompanying text.Google Scholar

253 E.g., in 1942 the Wisconsin State Bar Association's Committee on Integration undertook “to personally interview every lawyer in the state … for the purpose of obtaining … a written endorsement of the principle of bar integration.” The committee believed that the legislature was disposed “to deal with the matter of bar integration in accordance with the expressed wishes of the lawyers themselves inasmuch as other groups of the population are not directly concerned.”Report of Committee on Integration, 32 Rep. St. B. Ass'n Wis. 204, 205 (1942). For the emphasis on lawyer polls elsewhere, see, e.g., Action Delayed in Iowa, 22 J. Am. Judicature Soc'y 40 (1938).Google Scholar

254 Harley, supra note 97, at 50, 55. For Harley, who was clearly committed to the objectives of law reform and better administration of justice, this rhetorical appeal to lawyers' self-interest was presumably only a tactic. By 1936 Harley seemed concerned that such appeals might be having an unfortunate effect on lawyers' expectations of the unified bar. “The question,” as he then saw it, was “whether the … integrated bar … can serve the public as well as the professional need” (emphasis omitted). It is easy … to convert lawyers to policies which stretch their arms to power. But whether this power shall be best utilized remains to be seen … It is no real test of a reform movement when it moves merely toward obvious advantages to those who embrace it. The test comes when leaders endeavor … to further reforms which may appear to cost the lawyer something instead of rewarding him in advance. Harley, Herbert, Concerning the American Judicature Society, 20 J. Am. Judicature Soc'y 9, 18 (1936).Google Scholar

255 Graves, R. B., Address of President, 27 Rep. St. B. Ass'n Wis. 11, 20 (1937).Google Scholar

256 Id. at 25.Google Scholar

257 A key figure in the final push for bar unification in Wisconsin, Alfred LaFrance, was president of the voluntary state bar association in 1955. In that capacity, LaFrance told Wisconsin lawyers that “integration unquestionably will result in increased recompense to the practicing lawyers individually, through expanded public relations … and through the promulation of information advising of the value of legal services in given situations.”LaFrance, Alfred E., The President's Page, Wis. B. Bull., Oct. 1955, at 5, 7. After unification the Wisconsin State Bar's executive director became an active spokesman for unification in other states. Among the advantages of a unified bar which he reported to New Hampshire lawyers was that as a state agency, a state bar “is entitled to the advice and representation of the attorney general, if you want to call for it. For example, the [Wisconsin] attorney general rendered an opinion to the State Bar to the effect that its property is exempt from taxation and then sustained that opinion in the courts, all without expense to the bar.“ Habermann, supra note 9, at 43 (emphasis added). Ironically, one of the public benefits previously claimed for the unified bar was that it would enable the bar to shoulder expenses otherwise borne by the state. See Lathrop v. Donohue, 10 Wis. 2d 230, 250, 102 N.W.2d 404, 414 (1960), aff'd, 367 U.S. 820 (1961).Google Scholar

258 Id. at 244, 246, 102 N.W.2d at 411, 412.Google Scholar

259 See infra text accompanying notes 395–98.Google Scholar

260 Lathrop v. Donohue, 10 Wis. 2d at 248–49, 102 N.W.2d at 413–14.Google Scholar

261 In 1980 five lawyers petitioned the court to discontinue the state bar. According to the petitioners, when they polled all 9,319 active members on whether they favored “the continuation of the State Bar as an integrated bar,” 2,820 replied negatively and 1,892 affirmatively. In re Discontinuation of the State Bar of Wisconsin as an Integrated Bar, 93 Wis. 2d 385, 386, 286 N.W.2d 601, 602 (1980). While not questioning the reliability of the poll, the court denied the petition. But it did promise a full review of the state bar's status in 1982 and later appointed a committee, with several nonlawyer members, to conduct the review. See Kelly Report, supra note 27.Google Scholar

262 The minimum fee schedule incident raises another point. Had there been no unified bar in 1960, the court's unfortunate defense of a questionable bar program would not have occurred. The court now provides for a periodic review of the state bar's activities. See Wis. Sup. Ct. R. 10.10. If the state bar is continued, this review process may result in the court's commenting on the desirability of other programs it neither mandated nor specifically approved. One wonders whether there will be adequate public policy criteria for evaluating those programs. See infra text accompanying notes 426–28.Google Scholar

263 See, e.g., supra note 139.Google Scholar

264 Upon unification the private statewide association was deactivated in all but 4 of the 33 unified bar jurisdictions. See supra note 1. Most of the early calls for unification had anticipated this. Harley, e.g., usually claimed that the unified bars would simply absorb their private statewide predecessors or, as he put it, “assume the parentage of the infant order, and nourish it into a lusty youth.” Harley, supra note 97, at 57. See also Id., supra note 96, at 33, 42.Google Scholar

265 In his classic article on private associations, Zechariah Chafee, Jr., argued that freedom to associate in groups that operate without governmental interference is not only a widely shared value but one whose preservation is socially beneficial. “Like individuals,” Chafee claimed, private associations “will usually do most for the community if they are free to determine their own lives …. Legal supervision must often be withheld for fear that it may do more harm than good.”Chafee, Zechariah Jr., The Internal Affairs of Associations Not for Profit, 43 Harv. L. Rev. 993, 1027 (1930). For Chafee this meant not just that government should be slow to regulate private associational affairs but also that courts should sometimes decline to adjudicate disputes among private association members.Google Scholar

266 The Batonnier of the Belgian Bar Quoted, 12 J. Am. Judicature Soc'y 35 (1928).Google Scholar

267 See supra notes 123–26 and accompanying text.Google Scholar

268 Chafee referred to this objective as the “strangle-hold policy” and recognized that while the goal of autonomy favored nonintervention in associational disputes, the strangle-hold policy cut in favor of intervention, at least where giving up one's membership in, or being expelled from, an association could seriously impair one's livelihood. See Chafee, supra note 265, at 1020–21. As Chafee would have predicted, the most extensive regulation of the internal affairs of associations has come in the labor union field, where workers are sometimes compelled to be members in order to retain their jobs. Hence my use of the term “closed shop.”.Google Scholar

269 1943 Wis. Laws ch. 315.Google Scholar

270 Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604 (1943).Google Scholar

271 In re Integration of the Bar, 249 Wis. 523, 25 N.W.2d 500 (1946).Google Scholar

272 Id. at 528, 25 N.W.2d at 502.Google Scholar

273 Id.Google Scholar

274 “No matter what these fees be called,” the court said, “they are moneys required to be paid into the treasury of the bar for a public purpose connected with the administration of justice.”Id.Google Scholar

275 “[T]he same considerations that may call for the court to exercise power initially to integrate, require it to censor the budgets and activities of the bar after integration. If the moneys do not go into the State treasury and are not subject to audit or to the legislative process of appropriation in which the public character of the purposes for which the moneys are used may be considered, this court must assume the responsibility of seeing that activities of the bar for which these moneys are paid are sufficiently public to warrant the use of the money for their promotion.”Id.Google Scholar

276 Id. at 529–30, 25 N.W.2d at 503.Google Scholar

277 Id.Google Scholar

278 Id.Google Scholar

279 Id. at 528, 25 N.W.2d at 502.Google Scholar

280 See Blashfield, supra note 159, at 10, 64; Pirsig, Maynard E., Integration of the Bar and Judicial Responsibility, 32 Minn. L. Rev. 1 (1947); The Wisconsin Integration Opinion, 30 J. Am. Judicature Soc'y 147 (1947). All the critics pointed out that except in matters of discipline and bar admissions, other legislatures and courts had been content to leave their state bar more or less to its own devices. Pirsig argued, among other things, that Wisconsin public law permitted the use of public funds by an entity which was not under the direct supervision of the state legislature or supreme court. See Pirsig, supra, at 24 n.81, citing State ex rel. American Legion 1941 Convention Corp. v. Smith, 235 Wis. 443, 293 N.W. 161 (1940) (legislative appropriation to assist the American Legion in conducting a convention was valid where the legislature declared the convention to have a public purpose and provided for audit of the expenditures). This argument was probably sound in 1947 and would certainly be sound today. See State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973) (legislature may create a public housing finance authority with corporate powers which operates outside restrictions that apply generally to state agencies). But as a criticism of the 1946 Integration case the argument was probably beside the point; since the court cited no legal authority on the question, it seems to have held that close supervision of the state bar would be politically desirable rather than legally necessary. As for this political judgment, a Michigan State Bar president wondered how the court could have the “slightest reservation … about the capacity … for self-government of a body of persons who are certified to have attained such high standards of conduct and learning.” Blashfield, supra note 159, at 64.Google Scholar

281 The court had previously unified the bar on an experimental basis in 1956. See Integration 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).Google Scholar

282 In re Integration of the Bar, 5 Wis. 2d 618, 626–27, 93 N.W.2d 601, 605 (1958).Google Scholar

283 Early unification statutes in other states were often, but unsuccessfully, challenged as offending state constitutional bans on special incorporation. See, e.g., State Bar v. Superior Court, 207 Cal. 323, 278 P. 432 (1929); Board of Comm'rs Miss. State Bar v. Collins, 214 Miss. 782, 59 So. 2d 351 (1952). But cf. Jackson v. Gallet, 39 Idaho 382, 228 P. 1068 (1924).Google Scholar

284 Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604 (1943).Google Scholar

285 Id. at 44, 11 N.W.2d at 620.Google Scholar

286 10 Wis. 2d 230, 102 N.W.2d 404 (1960), aff'd, 367 U.S. 820 (1961).Google Scholar

287 See Lathrop v. Donohue, 367 U.S. 820, 822 (1961) (Brennan, J.).Google Scholar

288 10 Wis. 2d at 245, 102 N.W.2d at 412 (Currie, J.).Google Scholar

289 Id. at 230, 102 N.W.2d at 408.Google Scholar

290 Id. at 242, 102 N.W.2d at 411.Google Scholar

291 Id. at 243, 102 N.W.2d at 411.Google Scholar

292 By contrast, one of the Wisconsin State Bar's formal purposes from the beginning has been “to safeguard the proper professional interests of the members of the bar.” Wis. Sup. Ct. R. 10.02(2).Google Scholar

293 Yet state supreme court rules have always described the state bar as an “association … composed of persons licensed to practice law” in Wisconsin and have always asserted that “membership in the association shall be a condition precedent to the right to practice.” Wis. Sup. Ct. R. 10.01(1). Cf. In re Gibson, 35 N.M. 550, 4 P.2d 643 (1931). There, a lawyer challenged New Mexico's bar unification acts, which set up a board of commissioners to be elected by the members of the state bar and which required all lawyers to pay an annual fee to fund bar programs, including an annual membership meeting. The court found that the acts did “not compel membership in any association” and upheld the acts as construed. Id. at 559–60, 4 P.2d at 648. The court emphasized that the word “association” never appeared in the acts and described the license fee as being imposed by virtue of the lawyer's status as a member of the New Mexico Bar and not “as an incident to membership in any association.”Id. at 560,4 P.2d at 648–49. But what, one may ask, is in a name? The court never explained why the state bar wasn't an association.Google Scholar

294 See supra notes 263–64 and accompanying text. Dean Pound purported to trace the origins of the unified bars not only to the English inns of court but, more directly, to the pre-Revolutionary New England “bar meetings,” in which the lawyers practicing in a local court had some collective responsibility for bar admissions and other aspects of the administration of justice, but which had no formal structure or fraternal functions. See Pound, supra note 5, at 187–98, 204. Yet even Pound acknowledged that the modern unified bar generally had the fraternal purposes and the formal membership structure of the bar associations that developed in the nineteenth century. See id. at 253–54.Google Scholar

295 As the Wisconsin Supreme Court had stated prior to Lathrop, “everyone understands or should understand” that the views expressed are those “of the State Bar as an entity separate and distinct from each individual.”In re Integration of the Bar, 5 Wis. 2d 618, 623, 93 N.W.2d 601, 603 (1958).Google Scholar

296 See supra note 49.Google Scholar

297 However, the court did leave largely unanswered the question of what subjects were closely enough related to “the administration of justice, court reform, and legal practice” to justify state bar position taking. See supra notes 175–88 and accompanying text.Google Scholar

298 A stricter standard might have made the court focus more precisely on both the efficacy of the state bar's law reform work as a means to improving the administration of justice and the availability of less restrictive means—perhaps a beefed-up judicial council, a law revision commission, or reliance on the voluntary, private bar—to achieve comparable results. The court did assert, but made no effort to demonstrate, that communicating the positions of “the profession as a whole” is a “function an integrated bar … can perform much more effectively than can a voluntary association.” 10 Wis. 2d at 239–40, 102 N.W.2d at 409.Google Scholar

299 367 U.S 820, 848 (1961).Google Scholar

300 Id.Google Scholar

301 Id. at 864–65. For Harlan's assumptions as to how the state bar participated in the legislative process, see supra text accompanying note 182.Google Scholar

302 See 367 U.S. at 864–65. At least one state supreme court once imposed a levy on lawyers to support a judicial council. See Missouri Bar, supra note 131, at 125.Google Scholar

303 367 U.S. at 853.Google Scholar

304 Id. at 877–85. Justice Black also dissented but felt that if Lathrop's allegations were proven, the appropriate remedy would be a refund of that portion of the dues which were “exacted under protest … to advocate measures he is against and to oppose measures he favors.”Id. at 877. Unlike Douglas, Black saw no need to strike down the unified bar arrangement altogether.Google Scholar

305 Id. at 881.Google Scholar

306 Id.Google Scholar

307 “Historically questionable” because American lawyers have long spoken of law reform as a professional responsibility. See supra notes 77–78, 143–44, and accompanying text. This tradition is still reflected in the ABA's widely adopted ethics code. See Model Code of Professional Responsibility, EC 8–1 (1980).Google Scholar

308 367 U.S. at 878.Google Scholar

309 Id. at 881–82.Google Scholar

310 Id. at 880.Google Scholar

311 Id. at 882.Google Scholar

312 Id. at 820, 843 (“Given the character of the integrated bar shown on this record … we are unable to find any impingement upon protected rights of association”).Google Scholar

313 Id. at 847–48.Google Scholar

314 Justices Harlan, id. at 848–49, and Black, id. at 867–71, each effectively criticized Brennan's reasons for reserving this issue.Google Scholar

315 After describing many of the state bar's nonlegislative activities, e.g., policing the unauthorized practice of law, investigating grievances against lawyers, providing continuing legal education courses, promoting legal aid, and issuing pamphlets on legal subjects for nonlawyers, id. at 839–42, Brennan characterized the state bar this way:. [T]he bulk of [its] activities serve the function … of elevating the educational and ethical standards of the Bar … without any reference to the political process…. We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers. Id. at 843 (emphasis added).Google Scholar

316 Id.Google Scholar

317 Id. at 839. One might infer that if the state bar ceased to engage in certain activities unrelated to legislation, Brennan's constitutional calculus would change as well. The bar's role in grievance administration, one of the regulatory activities which Brennan noted, has ended. See supra text accompanying note 141. But legislative advocacy has certainly not become the bar's “major” activity.Google Scholar

318 Id. at 834–35 n.9. The policy statement was adopted in 1957, only a few months after the Wisconsin State Bar came into existence.Google Scholar

319 Id. at 834, quoting Alfred LaFrance, Wis. B. Bull., Aug. 1957, at 41–42, 44.Google Scholar

320 As Brennan noted, while there was no trial below, the Wisconsin Supreme Court had taken judicial notice of the state bar's activities in considering Lathrop's claims. 367 U.S. at 823 & n.2. But Brennan referred to nothing in the record on appeal that might show how, if at all, the “rule of substantial unanimity” affected the bar's decision making.Google Scholar

321 Studies of decision making in voluntary trade and professional associations suggest that to avoid internal disagreements and public displays of dissension they, too, often strive for a strong consensus before taking positions on pending legislation, although no rule requires them to do so. See Garceau, supra note 36, at 81 (AMA); Grant McConnell, Private Power and American Democracy 87 (New York: Alfred A. Knopf, 1966) (AF of L); David B. Truman, The Governmental Process 176–87 (New York: Alfred A. Knopf, 1955).Google Scholar

322 Similarly, Justice Harlan hedged his reliance on the image of the state bar as a public agency by also arguing that the element of coercion in the bar's legislative work was negligible, thereby playing on the bar's similarity to a voluntary association. He did not invoke the rule of substantial unanimity, however. Instead, he argued: “The dissenter is not being made to contribute funds to the furtherance of views he opposes but is rather being made to contribute funds to a group expenditure about which he will have something to say. To the extent that his voice of dissent can convince his lawyer associates, it will later be heard by the State Legislature with a magnified voice.” 367 U.S. at 856. In more homely terms one might say that the bar member “pays his money and takes his chances.” But the moral force of that expression lies in the notion that one who chooses to take part in a risky activity has no right to complain when risks materialize. This is no answer to the lawyer who would not choose to belong to the state bar in the first place or to support its legislative activity. A fairer description of that lawyer's situation is, “they take your money and you take your chances.” Moreover, the understanding that every lawyer has had a real chance to influence bar policy is, for all its attractions, one reason why a lawyer might be misidentified as supporting a policy he actually opposes.Google Scholar

323 But see supra notes 51–52 and accompanying text.Google Scholar

324 For the subsequent history of the Wisconsin State Bar's “rule of substantial unanimity,” see infra text accompanying notes 473–76.Google Scholar

325 In the past, this was not always understood. Some early twentieth-century political theorists argued that although there was no “public interest” touchstone that enabled citizens from different walks of life to agree on the merits of a legislative proposal, those with a common occupation would naturally agree, at least on proposals pertinent to their work. On this theory there were even calls for political representation by occupation rather than by geographical unit. See G. D. H. Cole, Social Theory 106–7 (New York: Frederick A. Stokes Co., 1920). For modern criticism of this “myth” of the unanimity of interest and belief within occupational groups, see McConnell, supra note 321, at 158–60. A second theory which was prominent earlier in the century was specific to lawyers. This was the idea that questions of “law reform,” though not of “politics,” could be answered by reference to the principles of “legal science” which were accessible to all lawyers as practitioners of that science. See, e.g., Rutherford, supra note 188, at 260 (“As the economic and social sciences are sought to furnish principles of legislation on the substantive side, so legal science is expected to furnish such principles for the formal or technical side of legislation”). If this theory were correct one might expect lawyers to reach near unanimity on, say, the best method of judicial selection or the ideal rules on marital property. But unanimity on those subjects has been conspicuously absent in Wisconsin lately. See infra note 475, and text accompanying note 470.Google Scholar

326 Cf. note 157 supra.Google Scholar

327 In addition to the cases discussed immediately below in the text, see Schneider v. Colegio de Abogados, 546 F. Supp. 1251 (D.P.R. 1982) (complaint challenging mandatory membership and unified bar's use of mandatory dues for ideological purposes states a cause of action under federal civil rights law). Other cases are pending in California and Florida. See Keller v. State Bar, No. 307168 (Sacramento Sup. Ct. Mar. 4, 1983) (preliminary injunction prohibiting certain uses of mandatory dues denied); Yates, Linda H., Petition Filed to Stop Bar from Lobbying, Fla. B. News, Dec. 15, 1981, at 1.Google Scholar

328 544 F. Supp. 458 (D.N.M. 1982).Google Scholar

329 411 Mich. 63, 305 N.W.2d 201 (1981).Google Scholar

330 431 U.S. 209 (1977).Google Scholar

331 Id. at 213 (Stewart, J.).Google Scholar

332 Prior cases had construed the Railway Labor Act not to authorize unions to use compulsory fees for political activities unrelated to collective bargaining, but had not reached the constitutional question. See Brotherhood of Ry. & S.S. Clerks v. Allen, 337 U.S. 113 (1963); International Ass'n of Machinists v. Street, 367 U.S. 740 (1961). However, a constitutional right not to be associated through state action with beliefs one rejects had already been recognized in cases not involving organizational membership or dues. See Wooley v. Maynard, 430 U.S. 705 (1977) (state may not compel ideological message to be displayed on license plate); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624(1943) (compulsory flag salute unconstitutional). Shortly before Abood, a plurality had also decided on First Amendment grounds that affiliation with a political party could not be made a condition of public employment in a nonpolicy-making job. See Elrod v. Burns, 427 U.S. 347 (1976).Google Scholar

333 The justices disagreed on the state's role in compelling this support. A majority focused on the statute authorizing public employers and unions to negotiate agency shop agreements. 431 U.S. at 226 (Stewart, J.). Justice Powell, concurring in the judgment, focused on the school board's participation in negotiating the agency shop agreement in question. Id. at 244, 253. But presumably all the justices would regard legislation or court rules requiring lawyers to join and financially support a state bar as state action for constitutional purposes.Google Scholar

334 Id. at 222.Google Scholar

335 Id. at 222, 236.Google Scholar

336 Id. at 223.Google Scholar

337 Id. at 236 n.33.Google Scholar

338 This is one of the issues raised in Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, 685 F.2d 1065 (9th Cir. 1982), cert, granted, 51 U.S.L.W. 3746 (U.S. Ap. 19, 1983) (No. 82–1150). See also Comment, The Right of Ideological Nonassociation, 66 Calif. L. Rev. 767 (1978).Google Scholar

339 431 U.S. at 259n.13.Google Scholar

340 Justice Powell did concede that the state could in theory transform the union into a public agency by delegating to it some of the school board's policy-making power. But in his view such a delegation would itself raise “grave constitutional issues” since it would dilute the power of school district voters to affect public policy, thereby implicating the one-person, one-vote principle. Id. at 261–62 n.15. For a brief discussion of that principle's applicability to the unified bar, see infra note 563.Google Scholar

341 In a few states, the supreme court, the legislature, or the governor also appoints a few nonlawyers to the state bar's governing board. See supra note 15, infra notes 403–17.Google Scholar

342 544 F. Supp. at 460.Google Scholar

343 411 Mich. at 109, 305 N.W.2d at 214.Google Scholar

344 Three members of the Michigan court read Abood to require the state to show not only a compelling interest in requiring fees for political activities but also that compulsory fees were the least restrictive means for serving that interest. Id. at 106–9, 305 N.W.2d at 213–14 (Ryan, J.). Two others believed that Abood simply required a showing that dues-supported activities were germane to a compelling state interest. Id. at 135–38, 305 N.W.2d at 226–28 (Williams, J.). And two others have not yet committed themselves on the type of scrutiny Abood calls for. Id. at 167–75, 305 N.W.2d at 242–46 (Levin, J.).Google Scholar

345 But see Schneider v. Colegio de Abogados, 546 F. Supp. 1251 (D.P.R. 1982) (complaint challenging mandatory membership as well as unified bar's use of dues for ideological purposes states a cause of action under federal civil rights law).Google Scholar

346 544 F. Supp. at 459.Google Scholar

347 Id. at 462.Google Scholar

348 Id.Google Scholar

349 Id.Google Scholar

350 Id., quoting Falk v. State Bar, 411 Mich. 63, 116–17, 305 N.W.2d 201, 217–18 (1981).Google Scholar

351 One commentator, in discussing Abood's implications for the unified bar, seems to have made the same mistake, asserting that Abood categorically bars the use of compulsory union fees for all political or ideological activities. See Parker supra note 24, at 957.Google Scholar

352 544 F. Supp. at 462.Google Scholar

353 See supra text accompanying notes 180–86.Google Scholar

354 544 F. Supp. at 461.Google Scholar

355 For evidence of the Wisconsin Supreme Court's decreasing reliance on state bar recommendations in making rules to govern law practice, see supra notes 106–15 and accompanying text.Google Scholar

356 Post-Abood disputes about which union activities are germane to collective bargaining and about the percentage of a union's dues allocable to such activities have been common and, in some cases, protracted. See, e.g., Ball v. City of Detroit, 84 Mich. App. 383, 269 N.W.2d 607 (1978); Browne v. Milwaukee Bd. of School Directors, Wisconsin Employment Relations Commission Decision No. 18408 (Feb. 3, 1981).Google Scholar

357 See 411 Mich. at 120, 305 N.W.2d at 219.Google Scholar

358 Id. at 83, 305 N.W.2d at 201–2 (per curiam).Google Scholar

359 Id. at 88, 109, 305 N.W.2d at 204, 214.Google Scholar

360 Id. at 146, 305 N.W.2d at 232.Google Scholar

361 Id. at 140, 305 N.W.2d at 228.Google Scholar

362 Id. at 117–18, 305 N.W.2d at 218. Calling on the “voluntary and self-supporting sections within the State Bar” was one among several methods mentioned.Google Scholar

363 Id. at 177–78, 305 N.W.2d at 247.Google Scholar

364 Report of Hearing Officer, Falk v. State Bar, at 27 (Mar. 27, 1982), 411 Mich. 63, 305 N.W.2d 201. The master observed at the same time that the questions raised in Justice Levin's opinion “indicate that it is not sufficient to meet first amendment requirements for the Bar to duplicate [the decision-making] procedures of the State Legislature.”Id.Google Scholar

365 Id.Google Scholar

366 Id.Google Scholar

367 While the master described his proposed procedural restrictions as not impractical, id. at 30, he made no real assessment of their likely impact on bar activity.Google Scholar

368 Considering that some state bars take positions on 10–50 or more bills in a legislative session and that state bar lobbyists sometimes find it necessary to assert bar positions in advance of any formal bar action (relying instead on later ratification of their conduct), the need for flexibility in bar procedures is obvious. See Parnell Report, supra note 27, app. C-3, at 4–5.Google Scholar

369 431 U.S. at 221 & n.15.Google Scholar

370 The constitutionality of dues-funded state bar amicus briefs was challenged but not resolved in two pre-Abood cases involving the D.C. Bar. See Angarano v. United States, 329 A.2d 453, 455 (D.C. 1974) (“[T]he constitutional problems presented by the submission of an amicus brief purportedly expressing the position of the total membership of a compulsory bar … are serious”); United States v. Cummings, 301 A.2d 229, 233 (D.C. 1973) (“It would unduly delay disposition of these criminal cases to [address] … this weighty collateral matter”).Google Scholar

371 See Axel v. State Bar, 21 Wis.2d 661, 124 N.W.2d 671 (1963) (refusing to enjoin publication of a state bar poll on the qualifications of a judicial nominee; two justices, citing Lathrop, dissented on the ground that this bar activity was “political” and therefore a violation of the First Amendment rights of the objecting bar members). The case is discussed infra, text accompanying notes 457–64.Google Scholar

372 Justice Ryan's opinion in Falk would strike down even the use of objecting members' bar dues to pay for drafting assistance to the state legislature. 411 Mich. at 116, 305 N.W.2d at 217.Google Scholar

373 See id. at 118–19, 305 N.W.2d at 218–19 (Ryan, J.); id. at 151–64, 305 N.W.2d at 234–40 (Williams, J.); id. at 176–78, 305 N.W.2d at 246–47 (Levin, J.).Google Scholar

374 Justice Ryan would have held impermissible the state bar's use of dues to help maintain a lawyer placement service, thereby leaving that activity to be funded totally by user fees. Id. at 118, 305 N.W.2d at 218 (furthering the “commercial interests of attorneys … can hardly be found to constitute a compelling governmental interest”). For Justice Williams, on the other hand, since a placement service “facilitates locating attorneys where needed,” it is germane to the administration of justice, the effectiveness of which is a matter of compelling state interest, and therefore an appropriate activity for dues funding. Id. at 156–57, 305 N.W.2d at 237.Google Scholar

375 Cf. Kania v. Fordham, 702 F.2d 475 (4th Cir. 1983); Arrington v. Taylor, 380 F. Supp. 1348 (M.D.N.C. 1974), aff'd mem., 526 F.2d 587 (4th Cir. 1975), cert, denied, 424 U.S. 913 (1976); Veed v. Schwartzkopf, 353 F. Supp. 149 (D. Neb.), aff'd mem., 478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U.S. 1135 (1974) (compulsory student fees at public institution may be used to support newspaper serving as a forum for the expression of differing views on controversial subjects).Google Scholar

376 A majority in Falk have already indicated that they would uphold the use of dues to publish a bar journal. See 411 Mich, at 115, 305 N.W.2d at 217 (Ryan, J.) (insofar as the journal is “primarily devoted to informing the members … on current matters relating to regulation of the profession and the improvement of professional standards”); id. at 175, 305 N.W.2d at 246 (Levin, J.) (“to the extent it serves an informational function”).Google Scholar

377 See, e.g., International Ass'n of Machinists v. Street, 367 U.S. 740, 755 (1961).Google Scholar

378 For some interesting evidence of how much more revenue an organization can generate by using a negative dues checkoff rather than simply inviting contributions, see Parker, supra note 24, at 969, comparing the British Labor party's ability to raise money under two different arrangements. One method was to take deductions from a trade union member's wages only after the member had affirmatively indicated his desire to contribute to the party. The much more effective method was to take such deductions until the union member affirmatively indicated his unwillingness to contribute.Google Scholar

379 See 431 U.S. at 240 & n.41.Google Scholar

380 Id. at 241.Google Scholar

381 Laurence H. Tribe, American Constitutional Law 589 n.5 (Mineola, N.Y.: Foundation Press, 1978).Google Scholar

382 See Galda v. Bloustein, 686 F.2d 159 (3d Cir. 1982) (compulsory student fee to support public interest research group engaged in political activity unconstitutional despite refund feature). Cf. Beck v. Communications Workers, 468 F. Supp. 93 (D. Md. 1979) (worker entitled to injunction against union collection of money for other than collective bargaining purposes, despite failure to invoke union's internal rebate procedure); School Comm. v. Greenfield Educ. Ass'n, 385 Mass. 70, 431 N.E.2d 180 (1982) (disputed payments must be escrowed rather than being available to union pending a rebate determination); Ball v. City of Detroit, 84 Mich. App. 383, 269 N.W.2d 607 (1978) (same). Whether an internal rebate procedure suffices to make constitutional an otherwise impermissible use of compulsory union dues may be decided next term by the Supreme Court. See Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, 685 F.2d 1065 (9th Cir. 1982), cert. granted, 51 U.S.L.W. 3746 (U.S. Ap. 19, 1983) (No. 82–1150).Google Scholar

383 The court in Arrow v. Dow, however, has approved a remedy agreed upon by the parties whereby the state bar will in the future provide rebates for members who object to its use of dues for lobbying purposes. The bar also agreed to reimburse the 38 plaintiffs for that portion of their mandatory dues which was spent on lobbying between 1977 and 1982. See Arrow v. Dow, 554 F. Supp. 1086 (D.N.M. 1983). And the Montana Supreme Court recently ordered its state bar to provide rebates to dissidents who objected to the use of their compulsory dues for lobbying, but it refused to grant other declaratory and injunctive relief that the dissidents had sought. The court acted on the basis of its superintending power over the state bar and declined to address the constitutional issues that the dissidents had raised. Reynolds v. State Bar, 660 P.2d 581 (Mont. 1983).Google Scholar

384 See Kentucky Educators Pub. Affairs Council v. Kentucky Registry of Election Fin., 677 F.2d 1125 (6th Cir. 1982).Google Scholar

385 See Schneider v. Colegio de Abogados, 546 F. Supp. 1251 (D.P.R. 1982) (complaint challenging mandatory Bar membership as well as use of dues for ideological purposes states a cause of action under federal civil rights law); Parker, supra note 24, at 957, 961.Google Scholar

386 See supra text accompanying notes 312–14.Google Scholar

387 431 U.S. at 217 n.10.Google Scholar

388 Id. See also cases cited supra note 332.Google Scholar

389 See Good v. Associated Students, 86 Wash. 2d 94, 542 P.2d 762 (1975).Google Scholar

390 Rev. Rul. 59–152, 1959–1 Cum. Bull. 54.Google Scholar

391 Rev. Rul. 77–232, 1977–2 Cum. Bull. 71. But cf. State Bar v. United States, 560 F. Supp. 21 (N.D. Tex. 1983) (where federal government agreed to treat state bar tax status on an entity basis, bar was exempt from federal excise tax on employee wages because at least some bar services were governmental in nature).Google Scholar

392 State bars have generally solicited contributions only to finance new buildings. In many unified bar states there is a tax-exempt bar foundation that can own such buildings and carry out the solicitations.Google Scholar

393 See, e.g., State Bar v. City of Lansing, 361 Mich. 185, 105 N.W.2d 131 (1960); Ford v. Board of Tax-Roll Corrections, 431 P.2d 423 (Okla. 1967); City of Madison v. State Bar, No. 106–360 (Dane Co. Cir. Ct., Dec. 7, 1961).Google Scholar

394 An unsuccessful bill before the Florida legislature in 1976, e.g., provided that no property of the Florida Bar be exempt from ad valorem taxation unless the property was put to a use that met specific exemption criteria. H.B. 2969, Fla. Leg. 1975–76 Sess.Google Scholar

395 421 U.S. 773 (1975).Google Scholar

396 317 U.S. 341 (1943).Google Scholar

397 421 U.S. at 791.Google Scholar

398 Id. at 790–91.Google Scholar

399 Exactly how much control over advisory opinions a unified or private bar association must cede to the state supreme court in order to bring the state action exemption into play is not clear. See Surety Title Ins. Agency, Inc. v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977), vacated, 571 F.2d 205 (4th Cir.), cert. denied, 436 U.S. 941 (1978). See also Little, Joseph W. & Rush, Randolph J., Resolving the Conflict Between Professional Ethics Opinions and Antitrust Laws, 15 Ga. L. Rev. 341 (1981). Cf. Ronwin v. State Bar, 686 F.2d 692 (9th Cir. 1981) (bar examiners' grading procedure, not specifically approved by state supreme court, failed to qualify for antitrust immunity as state action), petition for cert. filed, 51 U.S.L.W. 3776 (U.S. Apr. 26, 1983) (No. 82–1474).Google Scholar

400 The shifts range from providing for both public input in the preparation of opinions and judicial review of the opinions (see, e.g., Va. Sup. Ct. R., pt. 6, § 4, para. 10, reprinted in 219 Va. 367 (1979)) to providing that ethics and unauthorized practice committee members be appointed directly by the court. See Tom Hanna, Knowing Ourselves, 44 Tex. B.J. 918, 919 (1981) (Texas State Bar ethics committee now appointed by the court). In at least one voluntary bar state, an advisory ethics committee operates directly under the state supreme court. See N.J. Sup. Ct. R. 1:19. This may eventually be the pattern in unified and voluntary states alike.Google Scholar

401 A minor example is the decision to treat a state bar's journal as a public forum for constitutional purposes. See supra note 236 and accompanying text.Google Scholar

402 See, e.g., David Vogel, Lobbying the Corporation: Citizen Challenges to Business Authority 9–11 (New York: Basic Books, 1978).Google Scholar

403 Cal. Bus. & Prof. Code § 6013.5 (West Supp. 1982). As of 1983 the state governor appoints only four of the public members and the senate rules committee and the assembly speaker each appoint one. Id. as amended in 1979 Cal. Legis. Serv. ch. 1041, § 1, at 3942 (West).Google Scholar

404 See Wolfram, Charles W., Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minn. L. Rev. 619, 642 & n.89 (1978).Google Scholar

405 The D.C. Bar has been a pioneer among unified bars in promoting nonlawyer participation, but it has no voting lay board members. Instead, the D.C. Bar established in 1973 a Citizens Advisory Committee, which stocks the bar's other committees with nonlawyers and advises the D.C. Bar on how it can better serve the public. On Petition to Amend Rule 1 of the Rules Governing the Bar, 431 A.2d 521, 525 n.4 (D.C. 1981) (Harris, J.). According to one member of the court that oversees the D.C. Bar, the Citizens Advisory Committee's chief role is “to help assure lawyer accountability by putting hard questions from the client perspective.”Id. at 535 (Ferren, J., dissenting).Google Scholar

406 See Editorial Opinion and Comment: “Public Accountability,” 63 A.B.A. J. 1677 (1977).Google Scholar

407 Id., quoting the Los Angeles Metropolitan News.Google Scholar

408 According to one lawyer and former board member, e.g., [tlhe board's main problem is the indigestibility of public members. For four and a half years the body has clawed at its own entrails as a direct, proximate and almost exclusive result of ingesting those six nonlawyers. When you think of it, that's sort of a puzzlement, since most socio-political groups usually manage to cope with such a new group quite rapidly after reasonable adjustment. Compromises are made, people are co-opted, eyes are opened, China absorbs the invader, etc. With the board, however, this hasn't occurred; not only does the situation not seem to be improving, it appears to be getting worse. Lascher, Edward L., Lascher at Large, 56 Cal. St. B.J. 72 (1981).Google Scholar

409 Id.Google Scholar

410 Re-cap of Board of Governors Meeting, Cal. Law., Oct. 1981, at 67.Google Scholar

411 Tigerman, Bert Z., Should the California Bar Disintegrate—or, Has It Already? 12 Bev. Hills B.A.J., 317, 318 (1978). On the origin and organizational status of the conference, see Parker, supra note 24, at 947 n.65.Google Scholar

412 Id. at 947–48 n.68. According to one California State Bar leader the conference should “represent … the profession in Sacramento and before the public since the Board of Governors can often no longer do so, being constrained by public participation in its deliberations and by the pressures of its regulatory role.”Melchior, Kurt W., Sounding Off: Governing the State Bar, 55 Cal. St. B.J. 330, 332 (1980).Google Scholar

413 A special committee of the Conference of Delegates was created in 1979 to consider “the establishment of a voluntary state-wide bar association,” or “other alternative means to accomplish aggressive representation of the lawyers of the state.” Final Report of the Monterey Committee on the Structure of the State Bar of California 1 (July 10, 1980).Google Scholar

414 The State Bar: A House Divided L.A. Law., June 1979, at 10, 14.Google Scholar

415 After a “sunset” review of their state bars, several legislatures have recently placed three nonlawyers on the bars' governing boards. See Tex. Rev. Civ. Stat. Ann. art. 320a-1, § 9 (Vernon Cum. Supp. 1982–83). See also William B. Rozell, The Sun also Rises, Alaska B. Rag, Midsummer Night's Dream Edition, 1981, at 1; Sunset Review Bill Will Become Law, Or. St. B. Bull., July 1981, at 13.Google Scholar

416 A 1980 survey indicated that over half of the 23 voluntary statewide bar associations permitted nonlawyers to serve on boards or committees. ABA Directory, supra note 57, at 22–23.Google Scholar

417 In 1977, as the unified bar in Washington state was rejecting a plan to place nonlawyers on its governing board, the voluntary Bar Association of Greater Cleveland became the first bar association to place nonlawyers on its board and on all its committees. More Nonlawyers Added to Bar Boards, B. Leader, Nov.-Dec. 1977, at 7.Google Scholar

418 Whether the state legislature or the supreme court is the more appropriate body to create and supervise a state bar is an old issue. See supra note 246. Lawyers' preferences have usually turned on their hunch as to which institution was more likely to respect the bar's autonomy. Some lawyers once supposed this would be the legislature. See, e.g., Bird, supra note 164, at 118 (“We don't want to be merely an adjunct of the court, created by the court. Our mission lies in being an independent organization”). But the modem assumption has generally been that judicial control has the following “advantages”: the bar cannot be touched by executive or legislative action or popular initiative; bar funds cannot be captured by the legislature and can be spent without the usual constraints on agency expenditures; judges are relatively likely to approve dues increases but unlikely to interfere in bar affairs; no governor's veto of judicial rules for the bar is possible; and courts are relatively unlikely to find their own creation unconstitutional. See McKean, supra note 24, at 48. At present, the legislatures do tend to be more active than the courts in imposing new accountability measures on state bars. But see Wis. Sup. Ct. R. 10.05(1) (three nonlawyers on state bar board of governors); id. 10.10 (committee appointed every fourth year to review the bar's performance). This has stimulated interest in bringing legislatively created state bars under judicial control. See, e.g., David D. Hoff, The President's Corner: Integration by Court Rule, Wash. B. News, May 1979, at 9 (state bar sought to be reintegrated by court rule, in part because of the “lack of lawyers in the legislature and the recent tendency of many state legislators … to attack the legal profession”). Several courts have actually taken control of legislatively created state bars recently. See Bridgegroom v. State Bar, 27 Ariz. App. 47, 550 P.2d 1089 (1976) (State Bar Act of 1933 invalid, and present authority for the unified bar found in Ariz. S. Ct. R. 27, as amended in 1973); Exparte Auditor of Pub. Accounts, 609 S.W.2d 682 (Ky. 1980) (state constitution as amended in 1975 construed to give court sole supervision of the state bar); In re Integration and Governance of the Utah State Bar, 632 P.2d 845 (Utah 1981) (state bar reintegrated by court rule after the legislature required that bar disciplinary committees include nonlawyers). See also Letter from LaFel Oman, Chief Justice, New Mexico Supreme Court, to Vincent Montoya, Director, New Mexico Department of Finance and Administration, Mar. 8, 1976 (“all matters concerning the regulation, operation and administration of the State Bar” now covered by court rule and no longer governed by statute). Even without taking exclusive control over a legislatively created state bar, the courts have sometimes rebuffed legislative or executive efforts to examine state bar activities or funds. See, e.g., In re Examination of the Wash. State Bar Ass'n, 86 Wash. 2d 624, 548 P.2d 310 (1976) (state bar, though created by legislature, not a state agency for purposes of state auditor's authority to perform postaudits). On the other hand, legislatures have occasionally tried to assert supervisory power over a court-created state bar. See Legislative Inquiry into Bar Admissions and Regulations, 53 Fla. B.J. 572 (1979); 1977 Ass. J. Res. 57, Wis. Legis. (seeking constitutional amendment transferring exclusive authority to regulate law practice from court to legislature). Thus, although conflict between courts and legislatures over the authority to regulate law practice has never been limited to unified bar states or issues (see, e.g., Sharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973)), the presence of a unified bar has now become a major source of such conflict.Google Scholar

419 Chronicle Publishing Co. v. Superior Court, 54 Cal. 2d 548, 354 P.2d 637, 645 (1960), quoting Bus. & Prof. Code, § 6001.Google Scholar

420 Cal. Bus. & Prof. Code § 6026.5 (West Supp. 1982).Google Scholar

421 Sunset laws have so far served as a basis for legislative review of at least some aspects of state bar performance in Alabama, Alaska, North Carolina, Oregon, and Texas. See Bill Winter, Alaska Bar Survival Fight Planned, B. Leader, Sept.-Oct. 1980, at 11; Life After Sunset Seen for Unified Texas Bar, B. Leader, Jan.-Feb. 1979, at 4; Sunset Laws, supra note 16; McMenamin, Bob, Sunset Law Looms on Bar's Horizon, Or. St. B. Bull., Mar. 1979, at 26.Google Scholar

422 See Cal. Bus. & Prof. Code § 6140 (West 1974 & Supp. 1981). This authority had to be invoked frequently between 1975 and 1980 because of inflation and because the legislature was only willing to adopt bar dues bills on an interim basis. Parker, supra note 24, at 948 & n.74.Google Scholar

423 1979 Cal. Stat. ch. 44.Google Scholar

424 Memorandum from Charles H. Clifford, President, California State Bar, to the Board of Governors and Bar Presidents 7 (Mar. 14, 1980).Google Scholar

425 Legislative Analyst of the State of California, A Report on the California State Bar Pursuant to Resolution Chapter 44, Statutes of 1979, at 9 (Mar. 1980).Google Scholar

426 Id. at 88.Google Scholar

427 Id. at 89.Google Scholar

428 Id. at 90.Google Scholar

429 Id. at 92.Google Scholar

430 Id. at 91.Google Scholar

431 For discussion of the evolving concept of congressional oversight of federal regulatory agencies, see H.R. Rep. No. 916, 93d Cong., 2d Sess., pt.2, 62–71 (1974).Google Scholar

432 These tasks include the California State Bar's role in administering lawyer discipline, bar admissions, law school accreditation, lawyer specialty certification, a client security fund, and a mandatory attorney-client fee arbitration program. See Cal. Bus. & Prof. Code § 6001 et seq. (West 1974 & Supp. 1982).Google Scholar

433 Cf. In re Examination of the Wash. State Bar Ass'n, 86 Wash. 2d 624, 548 P.2d 310 (1976). There, in denying the state auditor's statutory authority to do performance audits of the state bar, the court noted that for the most part. it is the Board of Governors, elected by the bar association members, not the legislature, that determines what activities it will engage in…. There are no legislative standards established for the exercise of discretion in the expenditure of funds by the Board …. The traditional purposes for postaudits are not served by an audit of respondent. Postaudits are performed to detect “malfeasance, misfeasance, or nonfeasance in office ….” The complete discretion given the Board … in the performance of its duties, outside the areas of admission to the bar and discipline … leaves the auditor with no standards to determine whether malfeasance, misfeasance or nonfeasance have occurred. Id. at 628–30, 548 P.2d at 313–15.Google Scholar

434 In recent debates over bills to set dues levels for the bar, some members of the California legislature have been concerned chiefly about the bar's “increasing expenditures in the wake of Proposition 13.” At Last—Dues Bill, supra note 71, at 394. These legislators place uppermost the interest of the state bar's captive members, and some have sought to limit the bar's use of mandatory dues to strictly regulatory activities. Id. But other California legislators have presumably given priority to preserving or expanding the state bar's public service commitments.Google Scholar

435 On Petition to Amend Rule I of the Rules Governing the Bar, 431 A.2d 521 (D.C. 1981) [hereinafter referred to as the DC Bar case].Google Scholar

436 The D.C. Bar was organized in 1972 under rules promulgated by the District of Columbia Court of Appeals. Id. at 523. Contrary to common practice, in the District of Columbia the pre-existing, general-purpose voluntary bar association continued to operate after unification. See supra note 1.Google Scholar

437 431 A.2d at 525. There had been considerable opposition, e.g., to the use of $58,000 annually to fund the Citizens Advisory Committee, a group of nonlawyers, which, among other things, took positions on issues relating to the administration of justice. Id. at 525 & n.4 (separate statement of Harris, J.).Google Scholar

438 Id. at 526.Google Scholar

439 Id. at 522.Google Scholar

440 At the same time, Referendum No. 1 was overwhelmingly approved, 9,168 to 2,778. Id. at 526. More than 26,000 active bar members were eligible to vote. Id. at 522 n.1.Google Scholar

441 Id. at 521–22 (per curiam). The decision did place one minor qualification on the bar's implementation of Referendum No. 2, requiring the continued use of mandatory dues to enable the board of governors to perform certain housekeeping functions “essential to the day-to-day operations of the Bar as an organization.”Id. at 522 (separate statement of Harris, J.). This qualification aside, four judges initially favored, and four opposed, allowing the referendum to take effect. To break the deadlock, the chief judge then voted to let the referendum take effect, even though he found it “shameful that the District of Columbia Bar is to be permitted to shirk its responsibility to provide an institutional mechanism for the members of the legal profession in this jurisdiction to fulfill their ethical obligations mandated by the Code of Professional Responsibility merely because a majority of those voting in a referendum choose this path.”Id. at 533 (Newman, C.J., dissenting).Google Scholar

442 Con Referenda Nos. 1 and 2, [Washington, D.C] B. Rep. Oct.-Nov. 1980, at 3, 5 (statement by several former bar presidents).Google Scholar

443 According to Judge Ferren, mandatory dues accounted for roughly $2 million of the D.C. Bar's total 1980–81 budget of $2.4 million; of that amount roughly $1.1 million was to be spent on programs that dues would no longer fund under the referendum. DC Bar case, 431 A.2d at 541 (Ferren, J., dissenting). The D.C. Bar's expenditures for its major publication, the District Lawyer, in fiscal 1980 were $206,589, but the bar recovered $102,384 of this in advertising revenues. Id. at 525 n.5 (Harris, J.). In the same period, the bar spent $245,437 on continuing legal education but recovered $219,444 in CLE registration fees. Id. at 529–30 n.ll. Most clearly jeopardized by the referendum were the D.C. Bar's various “public service” activities, which required $251,457 in fiscal 1980 and earned only $30,986 in fees from the lawyers and paying clients who made use of the lawyer referral service. Id. at 527 n.8. Yet even here the referendum seems not to have caused the predicted crisis. In its very first postreferendum fiscal year, the bar succeeded in raising “more than a quarter of a million dollars … when, on its dues statement, it asked members to contribute $20 extra to the bar foundation and to public service activities. All told, it received $132,088 in foundation contributions, and $152,000 to its public service coffers.” Bars Are Looking to Donations in the Dues, B. Leader, Nov.-Dec. 1982, at 4.Google Scholar

444 Drawing almost verbatim on the list of purposes established earlier for the unified bar in Wisconsin, the D.C. Court of Appeals in 1972 provided in Rule 1, § 2 of its rules governing the bar:. The purposes of the Bar shall be to aid the court in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence in public service, and high standards of conduct; to safeguard the proper professional interest of the members of the Bar; to encourage the formation and activities of volunteer bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public, and to publish information relating thereto; to carry on a continuing program of legal research and education in the technical fields of substantive law, practice and procedure, and make reports and recommendations thereon; to the end that the public responsibility of the legal profession may be more effectively discharged. DC Bar case, 431 A.2d at 536–37.Google Scholar

445 Id. at 537 (Ferren, J., dissenting).Google Scholar

446 Id.Google Scholar

447 Id. at 538. By contrast, Judge Mack, in her dissent, not only described Referendum No. 2 as being “on a collision course with our court rules which authorize the Bar to spend funds for expenses incurred in carrying out [its] purposes” and argued that the referendum should therefore have no effect, but also declared that the bar “would have been justified in declining to put the issue on the ballot in the first instance.”Id. at 533 (Mack, J., dissenting). If Judge Mack meant to say that the bar's board need not conduct a proposed referendum that, if adopted, would call for action contrary to the court's existing rules, one must question the soundness of that view. For those rules provide that the board “shall … submit for determination by the members of the Bar, any question of Bar policy, including proposals for changes in the rules or By-laws, whenever directed so to do” by a petition signed by at least 300 bar members. Id. at 537 (emphasis added). Thus, the board seems to have no discretion to refuse to submit to the membership a referendum whose implementation would ultimately require a rule change, as Referendum No. 2 clearly acknowledged its implementation might. Cf. State ex rel. Armstrong v. Board of Governors of the State Bar, 86 Wis. 2d 746, 754, 273 N.W.2d 356, 359–60 (1979) (Day, J., dissenting). Perhaps Judge Mack's point was instead that whether to impose stringent limits on the use of mandatory dues was not a legitimate “question of Bar policy.” It was on just that ground and under an identical rule that the Wisconsin Supreme Court in 1979 upheld a board of governors decision not to submit to state bar members the question of whether the bar should petition the court to make voluntary the payment of bar dues for nonregulatory purposes. Id. at 746, 273 N.W.2d at 356 (per curiam). But there, too, the reasoning was open to question. Even though an affirmative vote on the proposed question would only have called on the bar to request a rule change, the court somehow found that the question sought “to change the State Bar into a voluntary association by vote of the membership.” The court also said that such a change would involve an issue of “court policy, not bar association policy,” but failed to explain why a matter ultimately for the court to decide, as any rule change would be, could not be an issue of bar policy as well. Id. at 749, 751, 273 N.W.2d at 357, 358.Google Scholar

448 DC Bar case, 431 A.2d at 538 (Ferren, J.).Google Scholar

449 This service, in addition to referring fee-generating cases to lawyers who have indicated their willingness to accept referrals, has a substantial pro bono component: providing free legal advice to callers with simple problems, and referring needy callers either to lawyers on a no-fee or reduced-fee basis or to various welfare agencies.Google Scholar

450 With respect to CLE, e.g., Judge Ferren referred to Canon 6 of the Code as adopted in the court's rules (“A lawyer should represent a client competently”) and to the bar's relevant purpose (to provide “a continuing system of legal research and education”); noted that the court maintained a disciplinary system to deal with extreme cases of incompetence and that even the referendum supporters saw the need for continued dues support of that activity; and concluded that to construe “discipline” literally and ban dues funding for preventive techniques like CLE would be an “irrational regulatory limitation,” at least without assurances that alternative funding would be adequate. DC Bar case, 431 A.2d at 539. Ironically, the Wisconsin Supreme Court in 1977 instructed its state bar to finance CLE programs only through user fees and not to subsidize those programs with bar dues revenue. In re Regulation of the Bar, 81 Wis. 2d xxxv, xli (1977). Since the Wisconsin court was a pioneer in instituting mandatory CLE (see In re Supreme Court Rule Requiring Continuing Legal Education of Members of the Wisconsin Bar, 71 Wis. 2d xix (1975)), one can hardly accuse it of failing to see CLE as part of a “responsible pattern of bar regulation.” Rather, a committee had recommended that the court order the bar to stop subsidizing its CLE program, so that other CLE providers could compete effectively. Parnell Report, supra note 27, at 28.Google Scholar

451 DC Bar case, 431 A.2d at 528.Google Scholar

452 Id.Google Scholar

453 Id. at 523.Google Scholar

454 Id. at 526.Google Scholar

455 Id. at 529.Google Scholar

456 See supra text accompanying notes 283–326.Google Scholar

457 21 Wis. 2d 661, 124 N.W.2d 671 (1963) (per curiam). The petition was denied by a 5–2 vote.Google Scholar

458 A number of voluntary state bar associations conduct judicial polls and there are no reported cases of a member contesting their power to do so. But cf. Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946); Pecora v. Queens County Bar Ass'n, 46 Mis. 2d 530, 260 N.Y.S.2d 116 (1965). Indeed, there are no reported cases adjudicating any internal disputes in voluntary state bar associations. One likely explanation for the absence of such litigation is the right to resign one's voluntary bar membership as a protest. See supra text accompanying notes 66–67. Another is the reluctance of courts to adjudicate internal disputes in voluntary associations. See Chafee, supra note 265. See also cases cited in notes 511–12 infra.Google Scholar

459 21 Wis. 2d at 665, 124 N.W.2d at 674.Google Scholar

460 Id. at 668, 124 N.W.2d at 676.Google Scholar

461 Id. at 667–68, 124 N.W.2d at 675.Google Scholar

462 Id. at 670, 124 N.W.2d at 676.Google Scholar

463 Id. at 672, 124 N.W.2d at 677 (emphasis added).Google Scholar

464 Id.Google Scholar

465 Unlike the Wisconsin State Bar, 18 other statewide bar organizations do presently conduct judicial polls. See ABA Directory, supra note 57, at 18, 47–50. This includes 35% (8 of 23) of the voluntary state associations, but only 30% (10 of 33) of the unified bars. Id. at 48, 50.Google Scholar

466 Nine percent of statewide bar organizations go beyond polls and actually endorse judicial candidates. Id. at 18. The Wisconsin State Bar does not make endorsements, though in rare instances its Committee on Judicial Selection has done so. See Report of the Committee on Judicial Selection, Wis. B. Bull., June 1965, at 52.Google Scholar

467 See supra notes 167–77 and accompanying text.Google Scholar

468 See, e.g., Letter from John Devitt, supra note 188.Google Scholar

469 See supra note 189.Google Scholar

470 See supra note 180. See also Whitney, supra note 199, at 41.Google Scholar

471 Kelly Report, supra note 27, at 11.Google Scholar

472 Id. at 12. See also supra text following note 188.Google Scholar

473 See Wilcox, Francis J., The President's Page, Wis. B. Bull., Oct. 1963, at 5.Google Scholar

474 Parnell Report, supra note 27, at 18. The Wisconsin Supreme Court did not pass specifically on this recommendation. See In re Regulation of the Bar, 81 Wis. 2d xxxv, xxxix (1977).Google Scholar

475 The board of governors voted 17–16 in March 1981 to support the enactment of a merit selection plan for state judges. See Board Actions, Wis. B. Bull., May 1981, at 75.Google Scholar

476 Kelly Report, supra note 27, at 13. The court has refused to impose this requirement on the bar, however. See Report of Comm. to Review the State Bar, slip op. at 5 (Wis. Sup. Ct. June 1, 1983) (per curiam). Since 1981 a two-thirds vote of the Florida State Bar's board is needed before that bar may publicly take a position on pending legislation. See John F. Harkness, Executive Directions: How Bar Members Regard Legislative Activity, Fla. B.J., Jan. 1982, at 6. And the master in the Falk litigation has recommended that a three-fourths vote of the Michigan State Bar's board be made a prerequisite for public position taking. See supra note 366 and accompanying text.Google Scholar

477 See Report of Comm. to Review the State Bar, slip op. at 6–7 (Wis. Sup. Ct. June 1, 1983) (per curiam); Kelly Report, supra note 27, at 13–14; Board Action on Review Committee Report, Wis. B. Bull., Dec. 1982, at 68. The Kelly committee recommended proportional rebates as a matter of right for members who object to some or all of the bar's legislative program in any given legislative session. The board now supports “a proportionate dues rebate … as respects direct bar costs relative to advocating specific legislative positions.”Id. In 1980 the board of governors had proposed a much more restricted system granting rebates only when lawyers showed that a portion of their dues had been spent for “partisan political or ideological purposes unrelated to the [bar's official] purposes.” See Rules and Bylaws (Proposed) Revised Bylaws, State Bar of Wisconsin Article XV, Dues Rebates, Wis. B. Bull., Aug. 1980, at 73, 83. The state supreme court never acted on that proposal.Google Scholar

478 As in other states, there has been protracted litigation in Wisconsin since the Abood case to determine the types of union expenditures for which a protesting dues payer must receive a rebate because they are not germane to collective bargaining. See Browne v. Milwaukee Bd. of School Directors, 83 Wis. 2d 316, 265 N.W.2d 559 (1978); Browne v. Milwaukee Bd. of School Directors, Wisconsin Employment Relations Commission Decision No. 18408 (Feb. 3, 1981).Google Scholar

479 See supra notes 377–84 and accompanying text.Google Scholar

480 See Smith, supra note 19, at 11.Google Scholar

481 D.C. Bar Members Rein-In Board Opinions, supra note 157, at 10.Google Scholar

482 In 1974 the state bar received applications for an unprecedented $200,000 in assistance to outside projects. Victor A. Miller, The President's Annual Report, Wis. B. Bull., Aug. 1974, at 34, 39.Google Scholar

483 Abrahamson, supra note 237, at 47.Google Scholar

484 Id. at 48–49, quoting a letter from the executive director of the state bar dated Nov. 12, 1973.Google Scholar

485 Resh opinion, supra note 237, at 39.Google Scholar

486 The Opinion is discussed supra, text accompanying notes 271–82.Google Scholar

487 Resh opinion, supra note 237, at 40–41.Google Scholar

488 Id. at 42.Google Scholar

489 Id. at 43.Google Scholar

490 Id. at 43–44.Google Scholar

491 However, the court did eventually criticize the specific view that the state bar had no authority to support preadmission legal education, In re Regulation of the Bar, 81 Wis. 2d xxxv, xxxviii (1977), and found it “appropriate for the State Bar to provide financial support to other entities when effective participation in the law making process requires this.”Id. at xxxix.Google Scholar

492 See, e.g., Memorandum from James Hough, Edgar E. Lien, & Warren H. Resh, staff members, to Rodney Kittelsen, President, Wisconsin State Bar & George Steil, President-Elect (Mar. 7, 1977) (advising that the bar could not legally contribute funds to an independent political action committee supporting an upcoming state referendum on court reorganization). The board of governors eventually decided that such a contribution would be improper, and this became one of the motivations for creating a Wisconsin lawyers' political action committee independent of the state bar. See supra notes 203–4 and accompanying text.Google Scholar

493 See, e.g., Memorandum, supra note 492.Google Scholar

494 Parnell Report, supra note 27, at 6.Google Scholar

495 For information on the structure, fund-raising methods, and activities of state bar foundations, see Nora Jean Levin & Janet Dempsey Steiger, To Light One Candle: A Handbook for Organizing, Funding and Maintaining Public Service Activities 97–111 (Washington, D.C.: American Bar Association, 1978). See also Gonser, Thomas H., The State Bar Foundation: A Modern Renaissance, 64 A.B.A. J. 1886 (1978) (arguing that the organization best able to maximize the legal profession's contribution to the public may prove to be the state bar foundation rather than the unified state bar or the voluntary state bar association).Google Scholar

496 Levin & Steiger, supra note 495, at 17 & App. A-2, A-3.Google Scholar

497 Id. at 17 & n.11.Google Scholar

498 Parnell Report, supra note 27, at 26.Google Scholar

499 In re Regulation of the Bar, 81 Wis. 2d xxxv, xli (1977).Google Scholar

500 See Levin & Steiger, supra note 495, at 18.Google Scholar

501 Id. at 18–19.Google Scholar

502 The court has also had to rule on proposed changes in dues structure. See, e.g., In re Amendment of the Rules of the State Bar of Wisconsin to Provide for Emeritus Membership, 71 Wis. 2d xxix (1975) (approving a new class of members above age 70 with no dues obligations); In re Amendment of State Bar Rules, 96 Wis. 2d xi, xii (1980) (denying without explanation a bar request to eliminate the emeritus dues classification). Were it not for the court's sense of responsibility to captive bar members, issues of dues structure would surely be too trivial to justify either the court's attention or its intrusion on the bar's autonomy as an association.Google Scholar

503 See In re Regulation of the Bar, 74 Wis. 2d ix (1976).Google Scholar

504 See In re Regulation of the Bar, 81 Wis. 2d xxxv (1977).Google Scholar

505 Id.Google Scholar

506 Parnell Report, supra note 27, at 25.Google Scholar

507 Id.Google Scholar

508 In re Regulation of the Bar, 81 Wis. 2d xxxv, xl (1977).Google Scholar

509 Id.Google Scholar

510 See Assembly Dues Assessment Action, Wis. B. Bull., June 1978, at 1.Google Scholar

511 See In re Petition to Review Change in State Bar Dues, 86 Wis. 2d xv (1978).Google Scholar

512 Id. at xvi. See also supra note 64.Google Scholar

513 Id. at xviii.Google Scholar

514 Id. at xvi.Google Scholar

515 Id. at xvii.Google Scholar

516 Id. at xvi.Google Scholar

517 Id. at xvii.Google Scholar

518 Id.Google Scholar

519 Herman v. UAW, 264 Wis. 562, 576, 59 N.W.2d 475, 478 (1953).Google Scholar

520 Callahan v. Order of Ry. Conductors, 169 Wis. 43, 47, 171 N.W. 653, 654 (1919). But see Attoe v. Madison Professional Policemen's Ass'n, 79 Wis. 2d 199, 255 N.W.2d 489 (1977) (because of importance of free speech, court willing to consider claim that association's removal of an officer in retaliation for his public statements violated association rules).Google Scholar

521 The court's involvement in setting bar dues, in passing on all rule changes, and in reviewing changes in bar bylaws has increasingly disturbed the organization's leaders. Thus, a bar committee proposed to the board of governors in 1979 a complete revamping of the rules and bylaws to reduce the court's involvement. “In the past,” the committee said, “the Court was called upon to exercise rather close supervision over matters ranging from important to trivial. The Court's precious time was not always put to its most valuable use, and resentment sometimes arose among members of the Bar when the Court and Bar differed in outlook. The Committee thought it was best to relieve the Court from the detailed, active supervisory role it has had to play.”Rules and Bylaws Committee Report, Wis. B. Bull., Dec. 1979, at 14. See also Lawrence J. Bugge, President's Page, Wis. B. Bull., Aug. 1980, at 5,6 (board in agreement that the bar's present rules “permit, and even require, too great an involvement by the Supreme Court in the day-to-day governance of the Bar, to the inconvenience and disadvantage of both the Court and the Bar”); Sommer, supra note 20, at 24–25 (reasons for reorganizing the bar include “getting the Supreme Court out of the day-to-day management of Bar operations, [a]ttainment of InHouse control over dues,” and “[a]bility to amend Rules and By-laws … without the necessity of Supreme Court approval”). These remarks not withstanding, the institutional advertising case suggests that the court is not willing to abdicate its felt responsibility to intervene in bar affairs to protect captive bar members. Nor, in my view, should it be willing to do so. Discontinuing the unified bar in favor of a voluntary state bar association is the only way to restore a substantial degree of associational autonomy to Wisconsin's organized bar and to allow the court to allocate less time to internal bar disputes.Google Scholar

522 See supra notes 141, 503, and accompanying text.Google Scholar

523 A dispute has also arisen in Wisconsin concerning the public accountability of state bar officers. In 1976 the board of governors adopted an amendment to the state bar bylaws, authorizing the bar to indemnify any officer against expenses or fines incurred in law suits arising out of his bar activities “if he acted in good faith and in a manner he reasonably believed to be in … the best interests of the State Bar, and, with respect to any criminal action …, had no reasonable cause to believe his conduct was unlawful.” By-Law Change: Indemnification of Officers, Employees, and Agents, Wis. B. Bull., Aug. 1976, at 87. The intention was obviously to bring the indemnification of state bar officers into line with the practice of private, nonprofit associations and corporations. See Kelly Report, supra note 27, app. 6, at 56. Cf. Wis. Stat. Ann. § 181.045 (West Supp. 1982). Within several months, however, 25 state bar members petitioned the court to review this bylaw change. They objected to the indemnification plan on the grounds that the state bar was a public agency, whose funds could only be used for public purposes, and that indemnifying bar officers for criminal fines could serve no public purpose. They also noted that other “public officers” enjoy no comparable protection, especially against criminal fines. Hearing on By-Law Change: Indemnification of State Bar Officers, Employees and Agents, Wis. B. Bull., Oct. 1976, at 74, 75. The court was thus compelled to review even this trivial bylaw change, which was finally approved. See Wis. Sup. Ct. R. ch. 10, app. art. VIII.Google Scholar

524 See Memorandum of Edward Reisner, staff member, state bar, Re: Wisconsin Open Meetings Law (May 16, 1975). Cf. State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976) (open meeting law inapplicable to judicial commission created by state supreme court to investigate grievances against judges, because the court, exercising its superintending power under the state constitution, had promulgated a detailed set of rules governing commission's procedures).Google Scholar

525 See Actions of the Board, Wis. B. Bull., Aug. 1975, at 15.Google Scholar

526 See, e.g., Minnesota State Bar Association Articles of Incorporation 42, reprinted in Minnesota State Bar Association Articles, Bylaws, Rules, supra note 227, at 304; Illinois State Bar Association Policy on Attendance, Assembly, Board, Committee and Section Meetings (adopted Apr. 23, 1977, amended Oct. 15, 1977).Google Scholar

527 Miller, Lawyers Pick McNulty in State Bar Election, Madison Capital Times, May 27, 1977, at 25.Google Scholar

528 Autocratic State Bar, Madison Capital Times, May 31, 1977, at 40.Google Scholar

529 Actions of the Board, Wis. B. Bull., Apr. 1978, at 41.Google Scholar

530 Bottoni, James A., Young Lawyers Division, Wis. B. Bull., Apr. 1978, at 40.Google Scholar

531 Parnell Report, supra note 27, at 9.Google Scholar

532 Id.Google Scholar

533 Id., Minority Report, at 3.Google Scholar

534 Minutes of Wisconsin State Bar Board of Governors' Meeting, Sept. 9, 1977, at 9. Earlier, the state bar president had criticized as extreme a public interest law firm's proposal that the board of governors have a majority of lay members. Kittelsen, Rodney O., President's Page, Wis. B. Bull., Apr. 1977, at 9.Google Scholar

535 See Wis. Sup. Ct. R. 10.13.Google Scholar

536 For evidence that the board sometimes tries to forestall conflicts with the court, see supra text accompanying note 171.Google Scholar

537 In re Regulation of the Bar, 81 Wis. 2d xxxv, xlii-xliii (1977). Justice Abrahamson dissented on this point and would have added nonlawyers as voting members of the board. Id. at xliii n.2.Google Scholar

538 Id. at xliii.Google Scholar

539 In re Amendment of State Bar Rules, 96 Wis. 2d xi, xii (1980). For all the attention the matter received it is hard to believe—and I think impossible to prove—that three voting nonlawyers have significantly affected the policies of a board that has more than 30 members.Google Scholar

540 Wis. Sup. Ct. R. 10.10. The Parnell committee was created in 1976 chiefly to prepare a report that would assist the court in evaluating the bar's dues increase proposal. After the Parnell Report was filed, the court ordered that similar committees be set up every four years to review the bar's performance. In re Regulation of the Bar, 81 Wis. 2d xxxv, 1 (1977). The Kelly committee, appointed in 1982, was the first of these quadrennial review committees. One of that committee's recommendations was that reviews come at less frequent intervals. See Kelly Report, supra note 27, at 25. The court has accepted that recommendation and plans to appoint future review committees only “from time to time.” Report of Comm. to Review the State Bar, slip op. at 12–13 (Wis. Sup. Ct. June 1, 1983) (per curiam).Google Scholar

541 Wis. Sup. Ct. R. 10.10.Google Scholar

542 Kelly Report, supra note 27, at 4.Google Scholar

543 Id. at 15–17. The report itself was 25 pages long.Google Scholar

544 Id. at 15.Google Scholar

545 Id. at 17.Google Scholar

546 Telephone conversation with Stephen Smay, executive director, Wisconsin State Bar, Jan. 25, 1983.Google Scholar

547 In re Regulation of the Bar, 81 Wis. 2d xxxv, lii (1977); Wis. Sup. Ct. R. 10.07.Google Scholar

548 In re Regulation of the Bar, 81 Wis. 2d at xli-xlii.Google Scholar

549 E.g., the court has approved the bar's petitions to create semi-autonomous divisions for young lawyers (see In re Promulgation of a Supreme Court Rule Creating a Young Lawyers Division Within the State Bar, 71 Wis. 2d xi (1975)), and for government and nonresident lawyers, respectively. See In re Amendment of State Bar Rules and Bylaws, 98 Wis. 2d xi (1980). Members of these groups had over the years been particularly likely to express dissatisfaction with bar's programs and structure.Google Scholar

550 In re Integration of the Bar, 5 Wis. 2d 618, 626, 93 N.W.2d 601, 605 (1958). See also supra text accompanying note 282.Google Scholar

551 Thus, according to the Kelly Report, “The history of the Assembly indicates that it has functioned effectively only in a small minority of situations when a particular faction within the State Bar has engineered attendance by a sufficient number of members supporting that particular faction. In many cases, the attendance at the Assembly has been too small to constitute even the minimal quorum which is required…, namely 300 of the approximate 12,000 members of the State Bar.” Kelly Report, supra note 27, at 20. See also Bugge, supra note 521, at 6.Google Scholar

552 In 1936 the ABA made a trend-setting change to a representative form of government, retaining a popular assembly solely for advisory purposes. See Sunderland, supra note 54, at 173–76.Google Scholar

553 For the board's petition, on which the state supreme court has so far deferred action, see Rules and Bylaws, supra note 477, at 73, 76. See also Kelly Report, supra note 27, at 20. A few lawyers have argued in favor of retaining the assembly's powers. See id. at 24.Google Scholar

554 Rodney O. Kittelsen, President's Page, Wis. B. Bull., May 1977, at 7.Google Scholar

555 See, Report of Special Committee on Rules and Bylaws, Wis. B. Bull., Feb. 1980, at 18.Google Scholar

556 See Rules and Bylaws, supra note 477, at 73.Google Scholar

557 In re Amendment of State Bar Rules and Bylaws, 98 Wis. 2d xi (1980).Google Scholar

558 Kelly Report, supra note 27, at 19–24. The final report of the state bar's special committee is reproduced as appendix 6 to the Kelly Report. The court has decided to take no further action concerning the political structure of the state bar until the membership has had a chance in an advisory referendum to express a preference between the proposed house of delegates and the present arrangement. Report of Comm. to Review the State Bar, slip op. at 9–11 (Wis. Sup. Ct. June 1, 1983) (per curiam).Google Scholar

559 The supreme court redistricted the state in 1972, at the bar's request, to equalize lawyer voting power in board elections. See In re Amendment of Rules of State Bar, 53 Wis. 2d vii (1972). Otherwise, however, the state bar's structure has not been substantially altered since unification in 1956. Meanwhile, the membership has quadrupled. The bar's reconsideration of its political structure therefore seems appropriate even if, as I believe, structural changes will never reconcile alienated members to compulsory membership and dues.Google Scholar

560 Bugge, supra note 521, at 6.Google Scholar

561 Kelly Report, supra note 27, at 24.Google Scholar

562 See, e.g., Clyde C. Cross, President's Page, Wis. B. Bull., Oct. 1971, at 5, 6 (state bar should be redistricted to bring board elections into “compliance with ‘one-man one-vote’ requirements”); Sarasohn, Sanford E. & Zuckman, Harvey L., One Lawyer—One Vote: The Application of One Man—One Vote to the Integrated Bar, 26 J. Mo. B. 461 (1970); Stephen Kitchen, Recent Reapportionment Decisions and Integrated State Bar Associations (background report prepared by the American Bar Foundation at the request of the Florida Bar, July 15, 1968); One Lawyer—One Vote: Bar Council Structure, Va. B. News, Jan.-Feb. 1973, at 35.Google Scholar

563 Though the courts have never decided whether to apply the one-person one-vote principle to elections for the governing boards of unified bars, they have extended its coverage well beyond state legislative elections, e.g., to elections for school boards and certain other specialized governmental bodies. See, e.g., Hadley v. Junior College Dist., 397 U.S. 50 (1970); Kramer v. Union Free School Dist., 395 U.S. 621 (1969). But more recently the United States Supreme Court held by a 5–4 vote that the principle does not apply to elections for directors of a large water reclamation district and that in such a governmental unit any voting scheme that bears a reasonable relationship to its statutory objectives is constitutional. Ball v. James, 451 U.S. 355 (1981). The majority argued that the reclamation district was an extremely specialized governmental unit and did not exercise the sort of governmental powers that invoke the strict demands of Reynolds v. Sims. Id. at 366–67. In particular the majority noted that the district could not impose property or sales taxes, enact laws, or administer such normal government functions as the operation of schools or welfare services. Id. at 366. While the Wisconsin State Bar, through its power to require dues payments and to determine how dues revenues are spent, arguably exercises legislative powers beyond those exercised by the water district in Ball, it is also true that the bar no longer plays a role in lawyer discipline and other regulatory programs and that it exercises many functions appropriate to a private association. Moreover, so long as the popularly elected state supreme court retains supervisory power to review state bar dues and spending decisions, it seems fair to say that the legislative powers delegated to the state bar are modest, a factor emphasized in Justice Powell's concurring opinion in Ball. Id. at 372–73. If the one-person one-vote principle were applicable to the state bar, the question of representation for the general public and not just for lawyers might arise. But so long as the state supreme court continues to appoint some nonlawyers to the bar's governing body, this is not likely to be a serious constitutional issue. A special purpose governmental unit can give greater electoral influence to groups disproportionately affected by its governmental actions, as lawyers are arguably affected by the state bar's “taxing and spending” decisions, even to the point of excluding modestly affected groups from the elections. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973).Google Scholar

564 See supra text accompanying notes 47–59.Google Scholar

565 For evidence of the profusion of activities in which modern bar organizations are engaged, on both the state and local level, see ABA Directory, supra note 57.Google Scholar

566 In 1976, e.g., the Oregon legislature established an unprecedented mandatory malpractice insurance program for lawyers, including a professional liability fund to be administered by the state bar. Or. Rev. Stat. § 9–080 (Supp. 1977–78). The program was touted as one that would soon catch on around the country and one for which a unified bar would be essential. But no other state has adopted such a program and Wisconsin has rejected it. See supra notes 111–12.Google Scholar

567 See supra text accompanying notes 100–209.Google Scholar

568 See supra notes 48–59 and accompanying text.Google Scholar

569 On the other hand, one may argue that since the unified bars, unlike the voluntary state bar associations, have no need to offer attractive membership benefits in order to retain members, their staff and officers will have relatively little incentive to make benefits as attractive as possible.Google Scholar

570 See, e.g., Goldberg, Charles L., The President's Page, Wis. B. Bull., Oct. 1958, at 5 (new group life insurance program, negotiated shortly after unification, said to offer a “substantial savings in premiums” and to be “another example of the benefits which flow to our members as a result of our increased size”).Google Scholar

571 A similar point was made in 1979 by a supreme court committee that advised the court to reject a bar proposal that would have required all lawyers in private practice in Wisconsin to purchase malpractice insurance. One justification offered for the proposed requirement was that it would increase the pool of insureds and thereby bring a reduction in premiums. Rejecting that argument, the committee declared: “No principle obliges anyone to purchase a product simply beause this may allow others to purchase the same product at a reduced price. Accordingly, we cannot regard voluntary insurance as injuring those who presently insure, even if it is true that it heightens their premiums somewhat.” Report of the Committee on Mandatory Professional Liability Protection for Attorneys (Oct. 1, 1979), quoted in Schneyer, supra note 111, at 1027 n.30.Google Scholar

572 See Annual Report, supra note 73, at 20.Google Scholar

573 See In re Regulation of the Bar, 81 Wis. 2d xxxv, xli (1977).Google Scholar

574 See Wis. Sup. Ct. R. ch. 12 (client security fund); id. rule 11.05(3) (trust account monitoring); id. rule 31.02 (mandatory CLE).Google Scholar

575 See In re Regulation of the Bar, 74 Wis. 2d ix (1976).Google Scholar

576 One of the regulatory tasks associated with the mandatory CLE program is the accreditation of CLE providers. Wis. Sup. Ct. R. 31.08. If CLE enforcement had been left in bar hands, the bar would have had to evaluate its own CLE offerings.Google Scholar

577 See American Bar Association, Standing Committee on Clients' Security Fund, and Center for Professional Discipline, Suggested Guidelines for the Establishment and Operation of a Clients' Security Fund, at 1 n.1 (Chicago: American Bar Association, June 18, 1976).Google Scholar

578 The ABA's model specialization plan calls for a governing body to be appointed by the state supreme court. See Peter Adomeit et al., Law, in Hedvah L. Shuchman, Self-Regulation in the Professions 105, 130 (Glastonbury, Conn.: Futures Group, 1981). Interestingly, of the 38 states that had existing orproposed specialization plans by 1980, only 5 called for nonlawyers to serve on their plan's governing body—Colorado, Indiana, Maine, Maryland, and Ohio—all voluntary bar states. See id. at 131.Google Scholar

579 See Shoaf, supra note 1; Powell, supra note 130.Google Scholar

580 See, e.g., N.J. Sup. Ct. R. 1:19.Google Scholar

581 See Wis. Sup. Ct. R. 10.03(5), 12.04.Google Scholar

582 For convenience, the state bar does collect lawyers' payments to support the boards administering the discipline and mandatory CLE programs at the same time it collects bar dues. See Wis. Sup. Ct. R. 10.03(5).Google Scholar

583 See In re Supreme Court Rule Requiring Continuing Legal Education of Members of the Wisconsin Bar, 71 Wis. 2d xix (1975).Google Scholar

584 The Minnesota State Bar Association proposed the country's first mandatory CLE plan to the supreme court in 1974, and it went into effect the following year. Also in 1974, the Iowa court asked the Iowa Bar Association to study such a plan, and a plan was adopted soon thereafter. See Parker, Douglas H., Periodic Recertification of Lawyers: A Comparative Study of Programs for Maintaining Professional Competence, 1974 Utah L. Rev. 463, 484.Google Scholar

585 See In re Establishment of Wisconsin Clients' Security Fund, 100 Wis. 2d xiii (1981). For adoption dates generally, see infra table 2.Google Scholar

586 The Wisconsin supreme court rejected a nonbar-sponsored specialty certification plan in 1981. See Supreme Court Items: Certification Plan, Wis. B. Bull., Feb. 1982, at 62.Google Scholar

587 In both the voluntary and unified categories some client security funds were set up by the statewide bar organization, some by order of the state supreme court. See ABA Standing Committee, supra note 577, at 1 n.1. Client security funds provide compensation to clients victimized by a lawyer's dishonesty.Google Scholar

588 Bryan, John W., Clients' Security Fund Ten Years Later, 55 A.B.A. J. 757 (1969).Google Scholar

589 The division staff serves as a liaison betwen the ABA and the state and local bar associations and as a central source of information. It publishes the Bar Leader, a bimonthly newsmagazine to keep bar leaders informed on events and ideas affecting the organized bar.Google Scholar

590 The NABE was organized in 1941, in part to “provide a forum for the mutal interchange of ideas which will facilitate the administration of organized bar activities,” to “secure a closer coordination of the activities of bar associations,” and to “conduct surveys … on various aspects of bar association operations and activities.” National Association of Bar Executives, art. II, supra note 72.Google Scholar

591 The development of Interest on Lawyer Trust Account (IOLTA) programs illustrates the rapid rate of diffusion of bar program ideas nowadays. An IOLTA program channels into legal aid or law reform activities interest that is earned on client funds held in trust by lawyers. In 1978 the Florida Supreme Court adopted the first IOLTA program in the United States. Levin & Steiger, supra note 495, at 103–6. By early 1983, IOLTA programs were already in effect in 5 states, awaiting implementation in 5 others, and under study in 31 more. David Lauter, Paying for Legal Aid by IOTAs, Nat'l L.J., Apr. 4, 1983, at 1, col. 4. There appears to be no connection between bar unification and either the adoption or the consideration of an IOLTA program.Google Scholar

592 The state bar organizations also do some work in the field of public education, but that work can be done, and often is done, by state bar foundations. For a brief description of the Wisconsin Bar Foundation's Project Inquiry, a program for law-related instruction in high schools, see Levin & Steiger, supra note 495, at 16.Google Scholar

593 See supra note 143.Google Scholar

594 Smith, Progress, supra note 143.Google Scholar

595 Id.Google Scholar

596 See Emery A. Brownell, Legal Aid in the United States: A Study of the Availability of Lawyers' Services for Persons Unable to Pay Fees 230–44 (Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1951). But more support will soon be raised at the state level through a program that allows interest on lawyer trust accounts to be used for charitable purposes. See supra note 591. Since this program can be administered by a bar foundation, as it is in Florida, the unified bar states should have no advantage in this area. See Levin & Steiger, supra note 495, at 103–6.Google Scholar

597 In 1938, with local funds drying up, the Washington legislature did pass a statute that authorized the unified bar in that state to receive appropriations for legal aid. No appropriations were ever made, however. See Earl Johnson, Jr., Justice and Reform: The Formative Years of the OEO Legal Services Program 17 (New York: Russell Sage Foundation 1974).Google Scholar

598 Indeed, the unified bar in North Carolina reportedly resisted the establishment of federally funded legal services offices by promulgating rules that could lead to disbarment for any lawyer who worked in a law office that complied with OEO legal services policies. See id. at 89–90.Google Scholar

599 Under a Judicare plan, eligible clients may receive service from any lawyer in private practice, rather than going to a staff office. For an interesting account of the Wisconsin State Bar campaign to get federal funding for its Judicare plan, see id. at 117–18, 325 n.26.Google Scholar

600 By 1972, however, the bar had withdrawn. Wisconsin Judicare has been run by an independent corporation ever since. See Samuel J. Brakel, Wisconsin Judicare: A Preliminary Appraisal 5 (Chicago: American Bar Foundation, 1972).Google Scholar

601 Debate on the relative merits of Judicare and staff programs in terms of costs, lawyer competence, and client satisfaction is extensive. See, e.g., Samuel J. Brakel, Judicare: Public Funds, Private Lawyers and Poor People (Chicago: American Bar Foundation, 1974); id., Free Legal Services for the Poor—Staffed Office versus Judicare: The Client's Evaluation, 1973 Wis. L. Rev. 532; id., The Trouble with Judicare Evaluations, 58 A.B.A. J. 704 (1972); Cole, George F. & Greenberger, Howard L., Staff Attorneys vs. Judicare: A Cost Analysis, 50 J. Urb. L. 705 (1973); Goodman, Leonard H. & Feuillan, Jacques, The Trouble with Judicare, 58 A.B.A. J. 476 (1972).Google Scholar

602 Report of the Committee on Legal Assistance, Wis. B. Bull., June 1974, at 51.Google Scholar

603 See LRIS Funding: The Dollars Are Making Sense, Wis. B. Bull., June 1981, at 31, 76. The “hotline” or free advice aspect of the program was originated by the Wisconsin Bar Foundation and then taken over by the state bar.Google Scholar

604 Id.Google Scholar

605 For the voluntary state bar associations, see ABA Directory, supra note 57, at 58–59 (associations answering positively to question 120: does your bar operate a program that refers cases to lawyers willing to provide pro bono services?) For some of the local programs, see Levin & Steiger, supra note 495, at 37–39.Google Scholar

606 A court rule requiring lawyers to make payments to a client security fund has been found constitutional. See In re Member of the Bar, 257 A.2d 382 (Del. 1969), appeal dismissed sub nom. In re Reed 396 U.S. 274 (1970).Google Scholar

607 At some point, however, the burdens of a tax on lawyers to subsidize legal services to the poor might become substantial enough to raise constitutional questions not implicated by a client security fund. Several authors have considered the constitutionality of a rule imposing a substantial pro bono service requirement on lawyers. Compare Humbach, John H., Serving the Public Interest: An Overstated Objective, 65 A.B.A. J. 564, 566 (1979) (requirement a violation of Thirteenth Amendment) with Shapiro, David L., The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. Rev. 735, 762–77 (1980) (no Thirteenth Amendment problem).Google Scholar

608 For brief discussion of the “forced-rider” concept in the public labor union field, see Staaf, Robert J. & West, Edwin G., Agency Shops and the Public Sector: An Economic Analysis, 33 U. Miami L. Rev. 645, 658–59 (1979).Google Scholar

609 Reasonable people may differ of course as to the public significance of various bar association membership benefits. For contrasting judicial assessments of the “public good” qualities of a lawyer placement service and a bar bulletin, see supra notes 374, 376. See also supra note 228 and accompanying text.Google Scholar

610 See Parnell Report, supra note 27, at 29–30. The D.C. Bar has removed any forced-rider problems in its operation by sharply curtailing the uses to which mandatory dues may be put. See supra notes 435–55 and accompanying text.Google Scholar

611 Parnell Report, supra note 27, at 29–30.Google Scholar

612 LeRowe, Myron E., President's Perspective: Committee's Report Should Shed Light on Integrated Bar Issue, Wis. B. Bull., Feb. 1982, at 4.Google Scholar

613 See Report of the Special Committee on Bar Status and Structure, reprinted in part in id. at 4, 67.Google Scholar

614 Id. A similar argument was made against allowing the recent D.C. Bar referendum to take effect. See supra notes 441, 447–50, and accompanying text.Google Scholar

615 See LeRowe, supra note 612, at 67.Google Scholar

616 See, e.g., Model Code of Professional Responsibility, EC 2–25, 6–2, 9–6 (1980).Google Scholar

617 It has been suggested, however, that as a matter of professional responsibility all lawyers should have a legal duty to join some bar association but not an obligation to join an official statewide organization. See Parnell Report, supra note 27, at 6 & app. A.Google Scholar

618 See Frankel, Charles, Review of Code of Professional Responsibility, 43 U. Chi. L. Rev. 874, 881 (1976).Google Scholar

619 See Report of Comm. to Review the State Bar, slip op. (Wis. Sup. Ct. June 1, 1983) (per curiam). This decision has been largely ignored in the text, not because it was announced as the article was going to press, but because the majority opinion leaves the decision to retain the state bar almost totally ungrounded. Basically, the court just reasserted its long-standing belief that a unified bar is the best means for the profession to “fulfull its obligations to the public.”Id. at 3–4. The court did list eight functions that all lawyers should be required to support financially, and it said that a unified bar is better suited than a voluntary association to carry out those functions. Id. at 3. Yet seven of those functions are either already being performed in Wisconsin by institutions other than the state bar (i.e., the provision of a disciplinary system, a bar admissions system, and a system to control the unauthorized practice of law), or are purely clerical and therefore irrelevant to the unification issue (i.e., maintaining a lawyer registry and a program under which lawyers periodically report the location of their client trust accounts), or are already funded exclusively by user fees (CLE programs) or by a special court assessment (client security fund) rather than by mandatory bar dues. See id., slip op. at 3–5 (Abrahamson, J., concurring). The eighth function listed by the majority (i.e., the operation of a “public information program”) was not even defined and might well be performed as effectively by the Wisconsin Bar Foundation and the private bar as it is presently performed by the state bar. Given the weakness of the court's analysis it was heartening to find that two justices refused to join in the majority opinion. Justice Day dissented. He argued, largely on the analysis suggested in this article, that the Wisconsin State Bar can and should be abandoned in favor of a voluntary state bar association. Id., slip op. (Day, J., dissenting). Justice Abrahamson concurred in the majority's conclusion, but only because she could not “at this time propose a coherent plan that allows for an adequate transition from the present unified bar to a different organizational structure.”Id., slip op. at 1 (Abrahamson, J., concurring). She also wrote:. It would be wise now to think about and experiment with different organizational structures. The court is not interested in running an association of lawyers, and undoubtedly the lawyers want to run their own organization. But as long as the court requires all licensed lawyers to be members of the bar, it must retain control over the organization to protect the rights of the “captive” members. We ought to start devising a better means than we now have to reconcile freedom of association with professional obligation. Id. at 7.Google Scholar

620 If the court chose to abolish the state bar altogether and not to keep it as an administrative organ, the court would have to reassign the bar's present administrative duties and look elsewhere when assigning new ones. But this should not be difficult. Keeping a lawyer registry, for example, which the state bar now does, would be a natural addition to the duties of the court's disciplinary agency, the Board of Attorneys Professional Responsibility. As for the client security fund, the court could either create a new board or else let the new voluntary state bar association administer it. (If the court took the latter option it would presumably retain the right to oversee the association's management of the fund and it should require that all Wisconsin lawyers rather than just the association members support the fund.) The same options would be available if the court ever decided to implement a new regulatory program or to mandate lawyer support for a crucial public service program. On balance, therefore, complete abolition seems the preferable remedy for the state bar's ills. For it should hasten the development of a strong private bar association by making it perfectly clear to Wisconsin lawyers that an official state bar membership organization no longer exists.Google Scholar