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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 legal practitioners, and help the public to understand and access its justice system.  In this model, the legal practitioners – rather than the taxpayers – pay for this work through required licensing fees.

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. Its mission is to serve justice and the public interest by promoting respect for the rule of law, improving the quality of legal services and increasing access to justice for Oregonians. 

The State Bar Act (ORS Chapter 9) provides that the OSB is a public service entity and “shall direct its power to serve the public interest” through three core functions that guide its work:  

  • Regulate the Legal Profession and Improve the Quality of Legal Services
  • Support the Judiciary and Improve the Administration of Justice
  • Advance a Fair, Inclusive and Accessible Justice System.

This model is rooted in the idea that the privilege afforded to licensed legal professionals comes with certain obligations to ensure that the courts and the justice system serve the public.

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 legal practitioners pay for the costs of lawyer regulation and the bar’s access to justice work.

The bar’s public protection mission also drives the delivery of programs and services that improve the quality of legal services for Oregonians. These include access for all practitioners – as part of their licensing fee – to legal research and educational tools (Fastcase and Barbooks), and programs that work toward a diverse and inclusive bar to meet the needs of an increasingly diverse public.

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 maintaining a public website – OregonLawHelp.org - that is a primary source of educational material on Oregon law, the judicial system and how to access legal help; collaborating with programs like Legal Aid during major crises when Oregonians need legal help (wildfires etc); operation of the statewide Lawyer Referral and Information Services program and management of Oregon’s 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. The bar’s Law Improvement Program works with the legislature to enhance the clarity and efficiency of Oregon statutes.


What is the status of the current litigation related to the OSB's unified bar model?

The OSB currently has one* lawsuit pending in federal court challenging the constitutionality of the bar. It relates to content published in the OSB’s Bulletin magazine in 2018, and the plaintiffs’ claims of First Amendment violations of free speech and freedom of association.

On February 26, 2021 a panel of the Ninth Circuit of the United States Court of Appeals affirmed the District Court's opinion dismissing the freedom of speech claims, and remanded the cases for additional review of the freedom of association claims. In 2022, the OSB moved for summary judgment on the remanded claims. On February 15, 2023, the District Court of Oregon granted summary judgment for the OSB and dismissed all claims. The plaintiffs appealed the dismissed claims to the Ninth Circuit.

On August 28, 2024, the Ninth Circuit upheld the constitutionality of mandatory licensure with the Oregon State Bar (OSB) and dismissed certain claims, ruling that the plaintiff is not entitled to retroactive relief. The Court noted that plaintiff may be entitled to prospective (future) injunctive relief, though any remedy “need not be drastic.” It provided guidance about how the bar could clarify when statements are not made on behalf of all bar members. The Court remanded the issue of relief for the freedom of association claim back to District Court for further proceedings.

This spring, the plaintiff filed a petition for writ of certiorari with the United States Supreme Court. On May 27, the Oregon State Bar filed a brief in opposition to that petition. To date, the court has not scheduled a conference to consider plaintiff’s petition.  The District Court stayed further proceedings pending the outcome of the petition. 

This lawsuit mirrors several filed against mandatory state bars across the country questioning the legitimacy of the unified bar model. Most have been dismissed or were denied writ by the United States Supreme Court and are closed.

The Louisiana State Bar Association (LSBA) and the State Bar of Texas each maintain a list of current challenges, found respectively at www.lsba.org/challenge and https://www.texasbar.com/Content/NavigationMenu/McDonald_et_al_v_Longley_et_al1/default.htm


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 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 (and now also licensed paralegals), which is core to the bar’s public protection mission. Because all Oregon practitioners now support BarBooks, the annual per-licensee cost is $83. 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-practioner cost for any services it provides will increase. The impact would likely be higher for smaller practices, and lower for large firms.

*Note: a second case filed in the same timeframe was dismissed in its entirety in August 2024.




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