State Bar Association Facing Lawsuit Over Use Of Licensing Fees For Politics


Chris Berg broke this story last night on his 6:30 Point of View program. You can read the complaint in the suit below, which was filed by attorneys for the Arizona-based Goldwater Institute on behalf of Bismarck-based attorney Arnold Fleck. You can read the Goldwater Institute’s press release on the matter here.

At issue here is the use of fees paid by attorneys to the State Bar Association of North Dakota for political purposes. Specifically, the more than $50,000 the SBAND spent on opposing Measure 6 (the shared parenting measure) on the 2014 ballot.

I wrote about this back in October. Supporters of Measure 6 argued that what SBAND was doing was illegal. Tony Weiler, the Executive Director of SBAND, told me that his board had determined that opposing Measure 6 wasn’t a political activity:

Weiler admitted North Dakota law requires attorneys operating in the state to pay a $380 per-year licensing fee to the bar association, and that the funds spent on opposing Measure 6 are drawn from those dues.

But Weiler also said the bar association’s governing board has determined this ballot measure isn’t a political issue. “This is a social policy issue rather than a political issue,” he said.

The North Dakota Century Code doesn’t make that distinction, however. Under Chapter 16.1 of the code, a “corrupt practice” is defined as the use of public resources for a”political purpose,” which includes “any activity undertaken in support of or in opposition to a statewide initiated or referred measure.”

Weiler also defended the use of licensing fees for political purposes by pointing out that attorneys can request a refund of at least some of their fees if they object. But is that how it should work?

As I wrote in October, a case similar to this resulted in Nebraska’s bar association having to reduce fees charged to lawyers while cutting back on political activities:

In September 2014, the Nebraska State Bar Association settled a lawsuit filed by a state lawmaker who claimed his dues were being illegally used for political activities. According to the Associated Press, mandatory membership dues in that state dropped from over $300 per year to under $100 after the courts restricted the use of those funds to “only those activities needed to regulate the legal profession, such as maintaining records, mandating continuing education for lawyers, and enforcing the ethical rules of attorneys.”

I can’t speak to whether or not the facts of the Nebraska case apply here in North Dakota, but let’s just say it’s probably not a good sign for the state’s lawyers.

As a matter of personal opinion, I don’t think officially-sanctioned licensing organizations ought to be engaging in politics at all. Their duties are to license and regulate lawyers. Not take positions on ballot measures or any political issue for that matter.

I have no problems with lawyers opposing an issue like Measure 6 or any other political issue under the sun. They have the same 1st amendment rights as the rest of us. But the vehicle for that activism should be a private group. Not the state-authorized regulatory agency for lawyers.