Monday, October 20, 2014

Puerto Rico Supreme Court invalidates statute that made Bar Association membership mandatory

Last week the Puerto Rico Supreme Court issued an opinion resolving a debate that had been hanging over the legal profession in the island for decades: whether it is constitutional for the state to mandate that attorneys join the Puerto Rico Bar Association. The case is called Rivera Schatz v. Estado Libre Asociado, and you can read the opinion (in Spanish) here.

The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.

As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.

The saga did not end there, of course.  The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.

Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.

Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.

Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.

Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.

The PR Bar Association has always been thought of as a "liberal" organization (with ties to the pro commonwealth and independence political parties) which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. "Conservative" lawyers, and the more conservative pro-statehood party, have long objected to the Bar Association's involvement in what they consider to be political questions, particularly since the Bar Association's position has typically "leaned to the left" on the issues.

Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided. It was for that reason that when the pro statehood party took control of the legislature, it enacted the law eliminating mandatory bar membership entirely. Not surprisingly, as soon as the pro-commonwealth party regained power, it again restored mandatory membership.

But the story ends, for now, at least, last week when the Supreme Court, a majority of the members of which were appointed by the most recent pro statehood governor, decided that Puerto Rico lawyers should be free to choose whether to join the Bar Association.

I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.

Stay tuned....