Critics of state right-to-work laws, which prohibit mandatory membership in a union as a condition of continued employment in a bargaining unit represented by that union, complain that those who enjoy the benefits of union representation in the collective bargaining process and in grievance proceedings — without paying union dues — are "free riders." Under that definition, there are about 20,000 "free rider" lawyers in Connecticut; i.e., those who are licensed to practice law in the state, but who have not seen fit to join its voluntary bar association.
Those states that have an "integrated" or "mandatory" or "unified" bar association avoid that issue by making the practice of law conditioned on joining — and paying dues to — the mandatory bar association. North Dakota became the first state to adopt this approach in 1921 and some 30 other states have followed suit. The U.S. Supreme Court upheld the constitutionality of such compulsory membership and dues payment in 1961, rejecting a lawyer's argument that Wisconsin's mandatory bar law violated his First Amendment free speech and free association rights. Revisiting the issue in 1990, the Supreme Court went further and ruled that an integrated bar could use mandatory dues to fund activities that were germane to the goals of regulating the legal profession, but could not use those funds for activities of an "ideologic nature which fall outside these areas of activity."
With the legality of a mandatory bar fairly well established, the question becomes whether there are real advantages to such a system, as compared to the voluntary bar association approach used in this state. Connecticut lawyers are not unusual in their failure to uniformly and enthusiastically embrace membership in the Connecticut Bar Association; studies reveal that in most states with a voluntary bar, only about one-third or less of the lawyers admitted to practice in that jurisdiction consider bar association membership worth their time, money and effort. Yet, as indicated, they are the beneficiary of the dues dollars paid and the hard hours worked by those who do join.
For when the CBA pursues it constitutional charge "to promote the public interest through the advancement of justice and the protection of liberty; … to facilitate the delivery of comprehensive legal services to the public, and particularly those in greatest need; to support or oppose legislation and regulations consistent with the interests of the public good…; to supply the highest quality continuing legal education opportunities and works of legal scholarship; to promote diversity within the Bar and the Bench; to develop collegial interaction among the members of the bar; to safeguard the dignity of the legal profession…," then surely those who have decided to leave those activities to the "bar junkies" are benefited just as much in their professional lives as are members of the CBA.
Of course, mandatory membership in a bar association does more than just eliminate that inequity, for a bar association that speaks for all of the 30,000 licensed lawyers in the state, and does so with one voice, will quite obviously have a more substantial impact on issues that concern the profession, including especially those before the legislature at any point in time.
But it is not just the self-interest of lawyers that would benefit from a unified bar. Quite obviously, the very significant increase in revenue that would result from 30,000 attorneys licensed by this state paying dues, instead of just the 9,000 who presently do so, would allow the bar association to undertake and support programs it could not otherwise even consider. Pro bono programs and legal aid organizations would enjoy a much needed fiscal revitalization and expansion in scope. The bar association's civic education undertakings (court visitation programs, mock trial competitions, Bill of Rights symposia, etc.) would be able to reach hundreds of more students and adults than they now do. The CBA's Truancy Intervention Project could have a greater and more significant reach. The resource-strapped Chief Disciplinary Counsel's Office would have the ability to pursue transgressions they have been forced to tolerate simply because of a lack of adequate resources.
To be sure, a mandatory or integrated bar is not nirvana and there are disadvantages. The question of which "model" to follow should a mandatory bar be considered would have to be analyzed very carefully. Would a bar association — after unification — be operated in the same manner as the current voluntary bar is operated and preserve its current independence? Or would it be more like a public agency, essentially no different from the state Board of Education except that its officers would be elected by a particular class and its members would pay a special tax (dues)? Quite obviously, such an approach could threaten the bar's autonomy. Finally, some states have structured the integrated bar similar to a public employee's labor union, which exists to serve its members and which would create entirely different public policy ramifications.
But those very important considerations aside, it cannot be denied that a unified bar, in which all lawyers contribute to the pursuit of its goals — at least with dollars, if not with time and effort — can achieve important goals not even within the imagination of any voluntary bar association, including the CBA. The impact of 30,000 lawyers — not just 9,000 — working (or at least paying) to "promote the public interests through the advancement of justice and the protection of liberty" cannot help but have an enormous — and salutary — impact.
It may be that, in the end, there will not be support for the adoption of a mandatory bar association in Connecticut. Indeed, a bench and bar that cannot even agree on mandatory CLE may well become apoplectic at the notion of mandatory bar membership. But by failing to even explore the concept — and to do so thoroughly — the bar is doing itself and the public it serves a serious disservice. We urge the CBA leadership to join with the Judicial Branch in a full and fair consideration of this concept. •