The door to the Senate Chamber at the Montana Capitol. (Micah Drew/Daily Montanan)
Two bills to exert control over and limit the authority of the State Bar of Montana have passed through the first chambers of the Legislature after sparking vigorous debate about the role of the organization and the legislative branch’s ability to regulate it.
On the Senate floor last Friday, Sen. John Fuller, R-Kalispell, said Senate Bill 92 is a “freedom bill” to restore First Amendment rights, while several Democrats decried the bill as unconstitutional.
The Montana State Supreme Court ordered the creation of the State Bar in 1974, stating that membership to the Bar is a condition to practice law in Montana. Fuller’s bill seeks to make membership voluntary.
“They claim that it was to provide a unified bar, but it is clearly a violation of the First Amendment to the United States Constitution, freedom of assembly, and it may be a violation of freedom of speech,” Fuller said.
He took issue with the fact that the State Bar collects dues from its members, and also engages in taking stances on some political issues and lobbying the Legislature. If a member has an issue with a State Bar position, they can get their fees refunded, but Fuller said they are still required to associate with members of the State Bar.
Fuller said that being required to associate with members of the State Bar, if a member opposes what they say and stand for, is a First Amendment violation.
However, Sen. Laura Smith, a former federal prosecutor and dues-paying member of the Bar, pushed back against that line of reasoning by claiming instead that the bill is unconstitutional.
Article VII, Section 2 of the Montana Constitution says the state Supreme Court may make rules governing admission to the bar, which Smith said is “pretty darn clear.”
“They’re not talking about a bar for drinking, they’re talking about the state bar,” Smith said. “So I think about the cost, frankly, to our constituents, of what is inevitable litigation on this. This is one of those bills that I will firmly stand up on and say to you, it’s unconstitutional. I do not want my constituents’ taxpayer money going to this bill truly when it’s that clear.”
Sen. Shane Morigeau, D-Missoula, also a lawyer, said he’s never heard a lawyer tell him they’re displeased with the state bar process, and don’t want to pay mandatory dues, though a Republican senator said that a lawyer had testified that the state bar does not represent him.
“(The bar) plays a role in making sure there’s integrity, learning and competence in this field,” Morigeau said. “I think this is a clear no. I also think it’s dangerous to start meddling in every single field in the state of Montana.”
Republican Sen. Jeremy Trebas of Great Falls, made further comparisons to other fields. Using his own profession as a CPA as an example, he said that he doesn’t have to be part of the state group to stay employed as a CPA, whereas lawyers are the only profession with “forced dues paid to a club.”
“I think that’s unethical, if not unconstitutional,” Trebas said. “I think it should be individually chosen who we want to associate with, even in our career. And I think individuals shouldn’t be forced into heavy handed decisions to maintain their employment and earn a living.”
Sen. Daniel Emrich, R-Great Falls, agreed, saying: “This is not the only requirement for being a lawyer in the state of Montana is joining the bar. There’s several other requirements that the Supreme Court has, and so there’s really no need for them to join the State Bar in order to be a lawyer.”
There are 31 states that have mandatory state bar associations, though some, like California, split off educational, organizational and lobbying functions into a separate association.
Currently an ongoing lawsuit in Oregon is taking place over that state’s mandatory bar requirement for lawyers.
The bill had cleared the Senate Judiciary Committee on party lines, and received the same treatment in the full chamber, advancing 32-18.
To audit or not to audit
Meanwhile, the House on Jan. 23 took up House Bill 65 mandating a one-time performance audit of the State Bar of Montana during the last 10 years.
The audit purpose is to create a thorough understanding of the Bar’s funding sources and create an analysis of the budget, costs and functions of the state bar, according to bill sponsor Rep. Lee Deming, R- Laurel.
Rep. Alanah Griffith, former treasurer of the State Bar, told her colleagues that the State Bar is entirely privately funded, with no public funds coming from the state or the Supreme Court, and that the finances are audited every year, “mind-numbingly.”
But, she said this bill is not for a financial audit, but for a performance audit, which raises concerns over privacy. She pointed to the lawyers assistance program, which helps lawyers who are suffering from different disabilities by matching them with a staff counselor and attorney, as something that should remain confidential.
“We don’t want to have those types of things open to a performance audit,” she said.
Deming said that concerns over constitutionality of auditing a quasi-government body didn’t raise a legal note for the bill, and said there is precedent for requiring legislative audits of other organizations.
The measure passed second reading in a close 51-49 vote, with several lawyers in both parties, including Republican Majority Leader Steve Fitzpatrick of Great Falls, voting against it, but the next day legislators took it up again to amend it.
The amendment, brought forth during Monday’s floor session by Sen. Fitzpatrick, would exclude certain documents from the audit, including: any law firm or attorney trust account or tax information; character and fitness reports; attorney disciplinary files; attorney assistance program files; or attorney mandatory continuing legal education files.
The amendment garnered additional support from legislators, and the bill again passed second reading, this time 58-42.