Lawyers and State Bar clash at hearing over mandatory unified bar membership
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Summary
Senate Bill 92 would end mandatory membership in the Montana State Bar; proponents cited First Amendment association concerns and Ninth Circuit precedent, while the State Bar and former presidents warned the unified dues fund regulatory and consumer-protection functions.
Senate Bill 92, introduced by Senator John Fuller, would prohibit mandatory membership in the State Bar of Montana and require that attorney participation be voluntary.
Proponents: First Amendment and circuit court precedent
Derek Oestriker (testifying personally) and Duncan Scott (longtime Montana lawyer) urged the committee to support SB 92 on First Amendment grounds. They cited Crow v. Oregon State Bar (9th Circuit) and related caselaw arguing compulsory association and compelled funding for political or lobbying activities can raise constitutional problems. Oestriker said he "enjoyed" much of the State Bar's work but objected to being compelled to affiliate when he disagrees with the Bar's positions. Duncan Scott noted other jurisdictions operate voluntary bars and said the constitution does not authorize the Supreme Court to force membership in a state-created bar association.
Opponents: regulation, consumer protection and funding
Bruce Spencer, representing the State Bar of Montana, told the committee the unified bar (created in 1974 by Supreme Court order) funds essential regulatory and consumer-protection functions: client security funds, fee arbitration, lawyer-referral services, a lawyer assistance program, and administrative support for Supreme Court commissions (admissions, discipline, continuing legal education). Spencer said the bar offers refunds for dues used for lobbying (consistent with Keller and related cases) and that the bar complies with those rules; he warned that losing a unified dues base would leave no clear funding stream for those regulatory commissions unless the Legislature appropriated funds.
Other opponents included former bar presidents, practicing attorneys and bar leaders who argued mandatory membership supports an infrastructure that the general public benefits from and that the Supreme Court has constitutional authority to regulate admission and practice.
Questions and committee discussion
Senators asked whether the bill abolishes the State Bar (Fuller: it does not) and whether the bar could still accept voluntary dues (Fuller: yes). Committee members pressed opponents on fiscal and administrative consequences: how many active attorneys pay dues (about 4,100 active lawyers was cited) and whether losing mandatory dues would shift costs to the state or leave regulatory gaps. Bruce Spencer and others said existing commissions rely on unified funding and that differences between voluntary and mandatory state bars in other states reflect differing regulatory arrangements.
Outcome
No committee vote on SB 92 appears in the transcript. Senators suggested they would review fiscal and constitutional implications further. Committee members urged additional information on fiscal consequences and administrative arrangements.