Monday, July 15, 1996
State Bar President's Legal Funding Statement Has Appearance of Partisan Political Utterance
One of the activities which gave rise to litigation culminating in the United States Supreme Court's 1990 ruling in Keller v. State Bar of California was the State Bar's penchant for propagandizing on political issues in the form of press releases.
It's at it again.
The State Bar on Friday issued a press release bad-mouthing legislation coming out of the Republican-dominated House Appropriations Committee reducing legal aid funding. The release quotes State Bar President James Towery as lambasting the action, cites the opposition to it by the Democratic administration, and quotes two persons as commenting adversely on the cost-cutting efforts.
While the amount of money expended on the distribution of a given press release is miniscule, we believe there is a significant wrong in applying monies exacted from lawyers who must pay dues or surrender their law licenses to essentially partisan political efforts. The words "Democrat" and "Republican" were not used in the particular press release. Nonetheless, the nature of it was such that there was no doubt as to which party's position was being fostered.
There are Republicans and others in the State Bar who favor the crusade of the Republican Congress to institute fiscal responsibility, and should not have the association they are compelled to join speak for them against such efforts. Towery, a Democrat, has the right of free speech, of course, and may rail as he wishes against the Republican approach. But doing so on a State Bar letterhead, in the name of the State Bar, in a press release prepared by State Bar personnel, strikes us as highly inappropriate.
Whether the conduct crosses the blurry line laid down in Keller may be debated. The high court said in that decision that forced membership in the State Bar is "justified by the State's interest in regulating the legal profession and improving the quality of legal services." It went on to hold:
"The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity."
It may be argued that the assault on slashing funding for the Legal Services Corporation is aimed at "improving the quality of legal services." The counter-argument, to which we subscribe, is that the issue is not one involving quality of services, but rather, the quantity. What volume of legal services should be tax-supported?
Is it not purely a political-social question as to how much tax money should be diverted from the industrious who pay taxes to subsidize legal services for others? And is that not outside the ambit of those concerns which have been held to justify a unified bar?
Put differently, if a given legal service is performed in California, the State Bar has a legitimate interest in that service being performed competently. Whether or not government will pay for certain services does not relate in any way to the quality of the services California lawyers are rendering. Rather, it relates to a funding decision which is purely a political matter—and here, where one party favors slashes in funding and one is opposing those slashes, it is a partisan political matter.
If the Keller limits have been exceeded, it would mean merely that protesting lawyers could each get a small fraction of a cent deducted from their dues. This is no remedy.
Our own view is that Keller was incorrectly decided. We believe that no lawyer, in order to practice a profession for which he or she has demonstrated a suitability through passing a bar examination and a moral fitness review, should be compelled to belong to an organization that expresses views with which that lawyer differs. The right of freedom of association dictates, in our opinion, that a lawyer, while subject to the authority of a regulatory body, should not be forced to be a "member" of any particular club.
That constitutional argument has failed. And the recent plebiscite showed that the vast majority of lawyers want a unified bar, killing any chances of legislation to bifurcate the regulatory and organizational functions.
Nonetheless, it remains that bar officials do have an obligation to recognize that the State Bar is comprised of persons with views that span the political spectrum. For sake of responsibility, they should eschew expressions of partisan political positions on behalf of the state's lawyers, rather than imputing their own views to lawyers who hold differing opinions.
We believe Towery crossed the line on Friday by assailing Republican efforts to cut down on spending and by promoting the position of the Bill Clinton White House. We do not doubt his sincerity in disclaiming a partisan intent, but we do question his judgment.
Copyright 1996, Metropolitan News Company
A news story on the State Bar's press release appeared on Page 3 of the same issue as the editorial.