Friday. March 22, 2002
State Bars May Use Mandatory Dues Money to Enhance Image—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
A state bar may use mandatory fees to promote the image of the legal profession, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The judges rejected a Nevada lawyer’s claim that his First Amendment rights were violated by the use of his bar dues for a $200,000 public relations campaign featuring the slogan—”Nevada Lawyers—Striving to Make the Law Work for Everyone.”
The slogan has appeared on billboards, on radio and television commercials, in State Bar of Nevada publications, and on the group’s membership cards. It was chosen in 1999 after a few members criticized the campaign’s original message, “Making the Law Work for Everyone”—which still appears on the home page of the State Bar’s website.
Educating the public about what lawyers do for it is not only an appropriate use of bar dues, it’s a necessary one, Senior Judge John T. Noonan declared for the Ninth Circuit.
The judge declared:
“More’s Utopia has no lawyers, but in our real world, lawyers are not merely a necessity but a blessing. If the public doesn’t understand that—and the State Bar had reason to think many members of the public did not—the justice system itself will wither. The work of the State Bar to foster public understanding of the adversary nature of law is vital to the bar’s function. It is no infringement of a lawyer’s First Amendment freedoms to be forced to contribute to the advancement of the public understanding of law.”
A Las Vegas lawyer, Chuck Gardner, sued in the U.S. District Court for the District of Nevada two years ago. He sought to enjoin the campaign as a violation of his rights of free speech and association, and also said it was beyond the authority of the State Bar and was designed to enhance the prestige of incumbent bar officials.
Senior U.S. District Judge Justin Quackenbush of the Eastern District of Washington, who was designated to hear the case in the District Court, dismissed the suit. He ruled that the campaign had “no political lobbying purpose whatsoever” and that Gardner had “not been forced to adhere to or proclaim any political view or engage in any personally-repugnant political activity.”
The judge further found that the campaign was “germane” to the State Bar’s “compelling interest and stated purpose to advance understanding of the law, the system of justice, and the role of lawyers, as opposed to nonlawyers, to make the law work for everyone.”
Noonan heartily agreed. For the justice system to work, he said, the organized bar must “dispel any notion that lawyers are cheats or are merely dedicated to their own self-advancement or profit.”
“The law, rightly understood, is not a business where the bottom-line dictates the conduct that is permissible. The law is a profession where a near monopoly of access to the courts is granted to a trained group of men and women on the basis that they will follow the profession’s rules of conduct and in so doing serve the cause of justice.”
The judge distinguished Keller v. State Bar of California, 496 U.S. 1 (1990), which held that mandatory state bar dues could not be used, over objection, to finance political advocacy unrelated to the practice of law. If a mandatory bar does use fees for that purpose, the high court held, members who dissent are entitled to a refund of the percentage of their fees which are so used.
The “professionalism initiative,” as the State Bar of Nevada describes its campaign, is not political advocacy, Noonan reasoned.
“Undoubtedly every effort to persuade public opinion is political in the broad sense of that term,” the judge wrote. “However, what Keller found objectionable was not political activity but partisan political activity as well as ideological campaigns unrelated to the bar’s purpose.”
The judge made short shrift of Gardner’s argument that lawyers are supposed to serve their clients, as opposed to “everyone.” All are served, he said, “by the adequate representation of conflicting interests and perspectives.”
“It is important for the public to understand that a lawyer representing a defendant in a criminal case is not a defender of crime, and that a lawyer advising his or her client of a tax break is not a scoundrel but an ally of a government that should collect as tax no more than the law allows. It is equally important for citizens to know that a prosecutor seeking to imprison a man believed guilty of a crime is serving justice, as is the state tax department’s attorneys seeking to collect a tax. The lawyer who represents a client who believes she has been unfairly denied promotion is as much a partner in the system of justice as the lawyer who acts for her employer seeking to explain the apparent discrimination.”
Senior Judge Dorothy W. Nelson and Judge Michael Daly Hawkins joined in the opinion.
The case is Gardner v. State Bar of Nevada, 01-15152.
Copyright 2002, Metropolitan News Company