Q&A: Unified Bars and Federal Litigation
What is a unified bar?
The terms unified and integrated when applied to a bar organization are essentially synonymous. Unified bars perform regulatory functions as well as a range of other public services and programs designed to enhance the competence and professionalism of bar members, and help the public to understand and access its justice system. Membership is required for lawyers practicing in a unified bar’s jurisdiction.
The unified bar concept first came to fruition in North Dakota in 1921. It derived from a recognition that the public obligation of the legal profession goes well beyond adherence to ethical/disciplinary rules. Lawyers, in effect, are the keepers of the justice system. While a healthy system of laws and courts is the foundation of any functional democracy, it fails its primary test if the citizens do not understand and trust, or cannot fully access, its protections. Now 100 years since its establishment, the unified bar model exists in more than 30 U.S. jurisdictions, although how those bars operate varies considerably.
What type of bar is the OSB?Oregon adopted the unified bar model through legislation in 1935. The State Bar Act (ORS Chapter 9) establishes the bar as an instrumentality of the judicial branch with regulatory authority over the practice of law and a directive to work for “the advancement of the science of jurisprudence and the improvement of the administration of justice.” ORS 9.010 and ORS 9.080. Today the bar’s statutory mission is to regulate the legal profession and improve the quality of legal services; support the judiciary and improve the administration of justice; and advance a fair and accessible justice system.
Over the years, the Oregon State Bar has maintained its strong, public-focused mission. The bar’s regulatory functions, including discipline and admission, are performed under the direction of the judicial branch, assuring that the courts can maintain fair and impartial review authority as the final arbiter in regulatory matters and that lawyers—not taxpayers—pay for the costs of lawyer regulation.
The bar’s public protection mission also drives the delivery of programs and services that promote a competent and ethical bar for all Oregonians, such as BarBooks, Fastcase, and the Diversity and Inclusion Programs. In addition, the bar advances a fair and accessible justice system through programs that help the public understand, trust and access the justice system. These include the Referral and Information Services program and the Legal Services program. Finally, the bar supports improvements to the administration of justice through advocacy for adequate funding for the courts and for legal services for low-income individuals.
What is the status of the current litigation related to the OSB's unified bar model?There are two lawsuits pending against the OSB in federal court challenging the constitutionality of the bar. Both Oregon cases were dismissed at the District Court level, and the plaintiffs appealed. The Ninth Circuit Court of Appeals heard oral arguments on May 12, 2020. On February 26, 2021 a three judge panel of the Court of Appeals affirmed in part and reversed in part the court’s dismissal, and remanded the case back to the district court for further proceedings. While the Ninth Circuit panel affirmed the District Court’s opinion on a freedom of speech claim, it remanded the case for additional review in regards to freedom of association claims. Meanwhile, both plaintiffs have filed writs of certiorari with the United States Supreme Court. The US Supreme Court is scheduled to consider the petitions at its conference on September 27, 2021.
These lawsuits mirror several filed against mandatory state bars across the country questioning the legitimacy of the unified bar model. The Louisiana State Bar Association (LSBA) maintains a list of current challenges with frequent status updates, found at www.lsba.org/challenge.
Would bar fees be lower if Oregon did not have a unified bar?While fees can be higher in unified states, this comes with a significant caveat. Our early research indicates that in states without a unified bar, a majority of lawyers join the voluntary statewide organization to access the benefits and value of a statewide entity, while also paying the mandatory fee for the regulatory mechanism. In these cases, combined annual fees to both organizations will likely be higher. This is due to economies of scale and shared operational costs in a unified model.
The OSB’s BarBooks program offers a good example of those financial principles. In 2011, the OSB Board of Governors decided to absorb the cost of BarBooks into general license fees so those who might need it most — new lawyers, sole practitioners and rural lawyers — would have full access. The rationale was to promote effective legal services and enhance the competency of all Oregon lawyers, which is core to the bar’s public protection mission. Because all Oregon lawyers now support BarBooks, the annual per-member cost is $71. When it was previously offered on a subscription basis, prices ranged from $395 annually for individuals to $5,000 for large firms.
In short, because a voluntary bar association will have fewer members than OSB currently has, the per-member cost for any services it provides will increase. The impact would likely be higher for smaller practices, and lower for large firms.
Where can I learn more about the current challenges to unified bars?In addition to the link above to the Louisiana State Bar Associations list of challenges, following are several articles addressing current challenges.