Saturday, August 29, 2020

Lepak: A First Amendment victory within the Bar Association

A First Amendment Victory Within the Bar Association
By Benjamin Lepak

Attorneys in Oklahoma are required by law to join and pay dues to the Oklahoma Bar Association to practice their profession. The OBA uses that dues money for many things, including political advocacy. Consequently, lawyers are forced to fund political speech they may disagree with in order to earn a living. Many lawyers contend this mandatory bar arrangement fundamentally intrudes on their First Amendment rights.

The U.S. Supreme Court agrees. In Keller v. State Bar of California, decided 30 years ago, the Court held it unconstitutional for bar associations to use mandatory dues to engage in political speech without providing meaningful procedures for lawyers to “opt out” of funding the speech.

The key word here is “meaningful.” Last year, a Tulsa attorney filed a federal lawsuit against the OBA, alleging Oklahoma lawyers’ First Amendment rights were protected only on paper, not in reality.

The lawsuit highlighted many flaws with OBA opt-out rules. An unreasonably early deadline meant lawyers had to object to expenditures that hadn’t even been made yet. With only proposed budget categories to look at—unsurprisingly, none of them titled “objectionable political activity”—it was impossible to predict where and how much the Bar would spend on politics.

What’s more, the rules explicitly authorized a legislative advocacy program (i.e., lobbying), and exempted that activity from objection. This prevented lawyers from opting out of precisely the political speech they might find most objectionable—plainly contrary to the constitutional standard articulated in Keller.

Perhaps most un-lawyer-like, the OBA served as the judge of its own behavior, with no appeal to a neutral decisionmaker, thereby stacking the adjudication process. Needlessly tight deadlines and procedural hurdles were imposed. It was as if the process was designed to discourage lawyers from asserting their First Amendment rights.

That all changed in March, apparently in response to the lawsuit. After losing an effort to have the suit dismissed, the OBA quietly amended its rules, addressing nearly all the concerns raised in the case. With the rules change, the OBA now has some of the best Keller procedures in the entire country.

Under the new rules, objecting lawyers’ full dues are set aside until the dispute is resolved. Objections are decided by a neutral mediator. Lawyers can get details about expenditures, not just broad budget categories. Best of all, lawyers can now categorically opt out of funding the OBA’s lobbying activity.

This is a big win for the First Amendment, but only if lawyers know about it. Let’s hope the bar association publicizes the new rules more than it has to this point. And in the future, let’s hope that an association of lawyers doesn’t have to be sued to be persuaded to do the right thing.

- Benjamin Lepak is Legal Fellow at 1889 Institute.


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