The basic question remains the same: Does the structure of an integrated bar association like that in Washington, and 31 other states like it, infringe on its members’ constitutional rights? To provide further clarity in answering that question, for the second time in three years, the structure of the Washington State Bar Association is undergoing a Washington Supreme Court-requested diagnosis.
Why? The past two years have produced a slate of inconsistent decisions in multiple Circuit Courts of Appeals regarding the integrated-bar structure. Although the U.S. Supreme Court has not granted review in any of these cases, the Washington Supreme Court wants to be prepared, and it has asked state bar leaders to consider whether the WSBA must—or, perhaps just as importantly, should—make structural changes.
The Washington Supreme Court conducted its own similar study process just three years ago, when a landmark U.S. Supreme Court decision about union fees, Janus v. AFSCME, overruled a key case that provided the rationale for another case, Keller v. State Bar of California, which upheld the constitutionality of the integrated bar structure. As expected, multiple lawsuits emerged aimed at Keller in the wake Janus. The crux of the issue is this: Does it violate members’ First Amendment rights when they are required to be part of an integrated bar to practice law? Integrated bars, like the WSBA, perform both regulatory and professional-association functions. Concerns arise when an integrated bar engages in speech or activity that seems to stray from the bar’s primary duties of regulating the practice of law.
The Washington Supreme Court reacted in 2018 by forming a work group—composed of legal professionals, a Supreme Court representative, and one public member—to undertake a “comprehensive review of the structure of the bar.” The work group considered Janus and other relevant cases as well as the WSBA’s historical and existing structure. The work group ultimately recommended that the WSBA retain its current structure “for now.”
But the post-Janus challenges to integrated bars kept coming and kept progressing, wending their way through various Circuit Courts of Appeals. Keller remains good law; the Washington Supreme Court and WSBA leaders, however, want to be sure they are forward-looking. In December 2021, the chief justice tasked the WSBA Board of Governors to come back with a recommendation for each of these three questions:
- Does current federal litigation regarding the constitutionality of integrated bars require the WSBA to make a structure change?
- Even if the WSBA does not have to alter its structure now, what is the contingency plan if the U.S. Supreme Court does issue a ruling that forces a change?
- Litigation aside, what is the ideal structure for the WSBA to accomplish its mission?
The Board of Governors subsequently created a study process called ETHOS (Examining the Historical Organization and Structure of the Bar), comprising eight full-day meetings to be conducted by the end of August. The first meeting was held Feb. 5 and the next is March 5. All the meetings will be recorded, and materials and background information are available on the ETHOS webpage.
Will recent opinions about the continuality of integrated bars warrant a structural change here in Washington? Is there a more ideal structure, regardless of litigation, that will help the WSBA achieve its mission? Stay tuned … and speak up. The WSBA Board of Governors has made member and public feedback a top priority during the study process, now through the end of August.
Bar Structure Terminology
Washington, like 31 other state bar associations and the District of Columbia, is an integrated (often also referred to as a unified) bar. In short, this means the WSBA serves two functions by administering regulatory functions and performing professional-association services for legal practitioners. The other two types of bars are “voluntary” (voluntary membership, does not administer regulatory functions) and “mandatory” (mandatory membership, may or may not administer regulatory functions).
In his most recent column for Washington State Bar News, WSBA President Judge Brian Tollefson (Ret.), explained that for the WSBA:
[S]ome bar functions are categorized as ‘regulatory/mandatory’ and deal with bar activities such as bar licensure, admissions, trust account and MCLE compliance, ethics violations, and discipline. Other activities of your Bar Association are categorized as ‘permissive/voluntary,’ such as member benefit programs, legislative activity, Bar sections, Bar News and other communications activities, and certain Bar committees, work groups, and task forces. Your Bar Association is also responsible for administering and funding certain boards that were created by and answer directly to the Supreme Court.
It’s important to note, however, that no two bars—unified/integrated or not—serve the exact same functions in the exact same way, and that’s part of the challenge in applying court opinions and lessons learned in other jurisdictions.
By WSBA staff