Mandatory bar membership for lawyers opposed

In Iowa, law school graduates can hang up a shingle and take cases as soon as they pass the state bar exam and obtain a $185 license.

In Nebraska, it's more complicated.

The Cornhusker State, like 32 other states and the District of Columbia, requires membership in a state bar association to be a lawyer.

Mandatory membership in the Nebraska State Bar Association has been a 75-year tradition. It costs $335 a year to join, which includes $60 forwarded to the State Supreme Court to finance a team that investigates and disciplines bad lawyers.

But Nebraska's so-called "unified" bar is under attack.

Leading the assault is State Sen. Scott Lautenbaugh of Omaha, an attorney for two decades.

After an unsuccessful attempt to pass a bill in the Legislature that would make bar association membership voluntary, Lautenbaugh petitioned the Nebraska Supreme Court this spring to make that change.

If that doesn't work, the senator has promised to file a federal civil rights lawsuit.

"We're a right-to-work state. I shouldn't have to be part of a lawyers union to practice my trade," Lautenbaugh said.

The effort has created a hot debate among Nebraska's 6,524 active attorneys, and already has prompted the bar association to review whether it is improperly taking political positions on issues outside its scope "to improve the administration of justice."

Warren Whitted Jr., an Omaha attorney and current president of the Nebraska State Bar Association, said he believes the bar has a role to play in the legislative process and has a comprehensive and constitutional review process to select issues on which to take a stand.

If the state bar became a voluntary organization, Whitted said costs would be shifted to taxpayers and court fees from membership dues. The bar association, he said, would have less impact on issues that impact lawyers and the public, such as court funding, distribution of judges and discouraging frivolous lawsuits.

"As the Nebraska State Bar Association, we can hold ourselves out as speaking for the 6,500 active lawyers. People listen when we speak," he said. "I would think we'd become much more politically driven (if it becomes a voluntary organization). We'd be taking positions on issues that would be much more controversial."

The Supreme Court is taking public comment through today on the idea through its website and via mail. A public hearing may follow before the court renders its opinion.

Of the 41 comments received by Wednesday, 25 opposed Lautenbaugh's petition, with 14 backing the senator and two neutral.

That comes after the bar association's Executive Council unanimously voted to reject the idea, and the bar's 90-member House of Delegates voted 58-4 to oppose it.

At a hearing in April, however, more than one attorney complained that the bar poorly communicates with its rural members and has experienced "mission creep" in its activities.

Until the 1990s, the bar association oversaw attorneys who investigated alleged wrongdoings by lawyers and sought disciplinary steps through the Nebraska Supreme Court. But the court took over those duties, and some lawyers, such as Lautenbaugh, say the bar, with its 19 employees and $3 million-plus budget, has expanded beyond its primary job, which is to conduct the bar exam and screen applicants.

"I don't think they've been good stewards of the money we send them," the senator said.

Lautenbaugh also said the bar weighs in on legislation that it shouldn't, and doesn't represent the viewpoints of all attorneys.

The senator sharply criticized Whitted this spring when he testified against a bill while three bar employees and two paid lobbyists for the bar sat in the audience. The bill was introduced by Lautenbaugh to redirect some court fees paid in Omaha back to private defense attorneys in Douglas County rather than sending it to the Lincoln-based Commission on Public Advocacy, a state-funded office of defense attorneys who take on major felony cases.

That office regularly takes cases in Lancaster County but rarely does so in Douglas County, setting up an effort to keep the money in Omaha — and generating a spat between Omaha and Lincoln lawyers.

Lautenbaugh said the bar should not have injected itself in such a local dispute. Whitted defended the bar's involvement.

"We took the view that people deserve adequate legal representation on major felony cases," he said.

In the end, the bar won, and Lautenbaugh withdrew the bill. The bar later testified in support of a different Lautenbaugh bill — one that would limit frivolous lawsuits — but the senator said that testimony also was outside the bar's scope.

Whitted said he realizes people can disagree, but it is important that an organization representing lawyers weighs in on matters important to them.

He said an extensive vetting process is undertaken before the bar takes a position.

This year, for instance, the bar's paid lobbyists, Bill Mueller and Katie Zulkoski, identified 118 bills that they felt were relevant. Those bills were reviewed by a 45-member legislative committee, then the Executive Committee and then the House of Delegates.

In the end, the bar took positions on 37 bills. Whitted said that Nebraska is far from "the fringe," pointing out that some state bars have taken positions on controversial social issues, including same-sex marriage and nuclear power.

The bar also allows individual attorneys to opt out of financing its lobbying activities, redirecting their dues to other activities and reducing what is paid to lobbyists by that amount.

About 1,100 attorneys take that option, which Whitted said brings the bar in compliance with a 1990 U.S. Supreme Court ruling that gave bar association members the free-speech right to not financially support a position with which they disagree.

Lautenbaugh said the opt-out provision is insufficient, and the Nebraska bar isn't fully complying with the court's ruling.

"They don't speak for me," he said, adding that the voluntary bar association in Iowa appears to work just fine.

Iowa has about 9,000 lawyers, of which about 91 percent are members of the Iowa State Bar Association.

There are some powerful incentives to join the Iowa bar, which costs $210 a year. Those include free use of a legal research computer program called Fastcase, and free use of an online legal document library called IowaDocs.

"It's a real benefit to members," said Steve Boeckman of the voluntary Iowa organization, which has three fewer employees than Nebraska's bar.

Whitted, the Nebraska State Bar Association president, pointed out that many of the lawyer-related activities conducted by the Iowa Supreme Court are undertaken in Nebraska by its bar association, under orders from the Nebraska Supreme Court.

He said that if Nebraska's bar became voluntary, the State Supreme Court would have to take over those activities, which include commissions that tackle the unauthorized practice of law, treatment of minorities in the legal system, and reimbursing people who lost money due to unscrupulous attorneys. All are currently funded by the bar association.

The Nebraska bar also provides a free, online legal search function to its members, and because it is a mandatory bar, can extend services to even the most rural areas of the state.

"To pay $275 a year to practice law is a small price to pay," Whitted said.

By Paul Hammel, World-Herald Bureau

Source: The Omaha World Herald