"If lawyers, the vindicators of justice, cannot protect their own right of private judgment, surely they cannot preserve their commitment to advocate for the First Amendment rights of others."
Popejoy v New Mexico Board of Bar Commissioners,
No. CIV 92-1462JB, 1993 WL 330529 at 1
(D.N.M. Aug. 26, 1993).
Michigan adopted a compulsory bar over 50 years ago. Today, arguments for its continued existence ring enormously hollow. Nobody would seriously argue that legal services are more affordable or available, that lawyers are better trained and the public better protected from malpractice, that justice is better served, or that attorneys or the legal system have a higher degree of prestige, legitimacy, or professionalism in Michigan than in Ohio, Indiana, Minnesota, or Illinois, all which operate with voluntary bar associations.
Against the lack of visible advantages, there are obvious disadvantages to the compulsory bar. The State Bar of Michigan, under the "Florida solution" adopted in 1993, is restricted from addressing public issues that lawyers would otherwise be entitled to address, which voluntary bar associations in other states do address, and on which the public may benefit from the knowledge or expertise of lawyers.
The Bar is required to maintain a rebate and arbitration procedure to refund dues to dissenting members.
The Bar is subjected to, and its activities restricted by, greater public oversight than that faced by voluntary associations, yet that oversight is not addressed to any perceived public benefit so much as to protecting the rights of the Bar's captive members.
Finally, the compulsory bar is a constant source of friction among the state's lawyers, as those who want out must battle with those who would force them to remain members.
It is not sufficient to argue that the Keller decision, though restricting the use of mandatory dues, upheld the basic validity of a compulsory bar. Nor is the existence of a compulsory bar in Wisconsin and many other states justification for maintaining a misguided relic of 1930s public policy. Lawyers have historically been the champions of individualism, free speech, and free association in America. As the Court noted in Popejoy, lawyers have a special obligation to support the rights of individual conscience and choice. Forced member-ship in the State Bar is contrary to this obligation and to the bar's heritage.
A return to a voluntary bar would be in the best interests of all the people of Michigan, including Michigan attorneys.