Wisconsin Lawyer
Vol. 83, No. 2, February 2010

About a year ago, the Membership Committee (created and presided over by President Diel) met to discuss the 2008 Member Satisfaction Survey it had commissioned. It was clear that the question of a voluntary bar had reached a boiling point, and that about 57 percent of our membership was demanding that the integrated nature of the State Bar be changed. I had the privilege of sitting on that committee, and I favored turning the issue over directly to the Board of Governors (BOG). I lost that vote, and the matter was referred to the Strategic Planning Committee for study. Perhaps wiser heads prevailed.

John Macy, a Waukesha attorney and former BOG chair, was chosen to chair the Strategic Planning Committee because he had never taken a formal position one way or another on the question of a voluntary bar, because he knew how to run a meeting, and because he had a lot of experience and Bar savvy.

President-elect Boll and I were committed to a voluntary bar. I therefore picked two other members who were committed to a mandatory bar, and populated a committee thereafter with those who had not taken a position.

Here is the thumbnail sketch of what the Strategic Planning Committee went through: The committee sought input from the membership wanting to know not only the membership’s choice, but the reasons behind that choice. Nearly 3,000 responses were processed. All entities of the State Bar, including all of the sections and committees were invited to comment: most of them did and that information was all analyzed. The Lathrop case from 1961 was reviewed at the state and federal level. Proceedings by members of the State Bar of New Mexico before its own state supreme court to become a voluntary bar were reviewed. Analyzed also were the Parnell report of 1977, the real estate title of the Bar building, the Schneyer article of 1983, and a memorandum from the chief financial officer to the Finance Committee. The litigation surrounding the voluntary bar in the late 1980s and its reintegration in the early 1990s including all supreme court opinions were reviewed, as was an exhaustive Wisconsin Lawyer article from 1991, and testimony of 24 witnesses was had. Of course the cost of seemingly endless litigation with disgruntled members was weighed. And I am just hitting the high points. Check it out – all of the materials, including the public hearing transcripts, are available on the State Bar Web site, at www.wisbar.org/stratplancomm.

There are two inescapable conclusions in the committee report about which there can be no reasonable debate:

1. A majority of the members of this organization want it to become a voluntary organization, and
2. The political activities of the State Bar infringe on the First Amendment speech right of its members (who don’t concur in a particular position) and mandatory membership infringes on their association right.

As to the former, the recent membership survey only bolstered what three of the last five presidential elections demonstrated. The results have been consistent going back to the referendum of 1979.

As to the latter, the legal issue is whether the infringement on the rights of the members can be justified. The question is whether there is a public policy that is so profound that it trumps the constitutional rights of the lawyers to not have the State Bar speak for them, and not be associated with it. Historically, the policies justifying the infringement grew out of Bar functions, such as disciplining members (now done by the OLR), controlling who was licensed to practice (now done by the BBE), and fixing prices (now a violation of the antitrust laws). Only the Wisconsin Supreme Court can tell us whether a compelling policy remains.

The Strategic Planning Committee has concluded by unanimous vote that the BOG should approve a petition to the Wisconsin Supreme Court to review the mandatory nature of the State Bar. What the committee has decided not to do is ask the BOG to make a decision, mandatory vs. voluntary: what difference does it make if the BOG is split 20/25 one way or the other? The decision is for the supreme court. Obviously, every member of the Bar will be free to advocate for any form of organization that member desires.

The question is whether the BOG will facilitate the issue coming before the supreme court. It is hoped that the BOG will respond to the membership and support the committee convened to study the issue. For it is certain that some group of members will petition the supreme court: It would be a real embarrassment if the petition were to come from “outside” and be based on the committee report (that the BOG chose to ignore) and the wish of the members (that the BOG refused to represent). The court might see this as the best argument yet for a voluntary bar!

Wisconsin Lawyer