Abstract
Mandatory state bars were originally established to better regulate lawyers, advance the profession’s interests, and protect the public. Today, however, renewed uncertainty about their constitutionality and questions about what these bars can do and say has led to a spate of litigation against them. This is therefore a good time to rethink the wisdom of maintaining these bars. The Article first describes the unsettled state of the law. It then notes that due to the constraints courts have placed on mandatory bars, some cannot perform traditional bar functions, such as proposing improvements in the substantive law. These bars cannot defend courts from unjust attacks or act to protect democratic norms. A few are unduly constrained by the political preferences of government actors. Yet due to their close relationship with courts, some play an outsized role in writing the law governing lawyers. The Article then explains why these bars do not appear to better regulate lawyers or protect the public than alternative regulatory structures. Mandatory bar membership does, however, cost somewhat less than lawyer licensing fees and state bar dues in other states. Mandatory bars also ensure that all lawyers can reap the benefits of belonging to a bar organization. Yet many lawyers do not take advantage of those benefits, and some might gain more from using their money to join a different bar association. This Article recommends that jurisdictions seriously reconsider whether it makes sense to compel state bar membership any longer.
Keywords
MandatoryBarDebate, LegalEthicsReform, BarAssociationPolicy