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In re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska

Supreme Court of Nebraska

December 6, 2013

In re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska: to Abolish Neb. Ct. R. Chapter 3, Article 8, and to Make Whatever Other Rule Changes Are Necessary to Transition From a Mandatory to a Voluntary State Bar Association.

Page 168

Petition to create voluntary state bar association. Petition granted in part, and in part denied.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Constitutional Law: Attorneys at Law. A state may constitutionally require a lawyer to be a member of a mandatory or unified bar to which compulsory dues are paid.

2. Attorneys at Law. The compelled association of an integrated bar is justified by the state's interest in regulating the legal profession and improving the quality of legal services.

3. Constitutional Law: Attorneys at Law. A state may constitutionally fund germane activities out of the mandatory dues of all members.

4. Constitutional Law: Attorneys at Law. The Nebraska Constitution does not expressly vest the power to define and regulate the practice of law in any of the three branches of government.

5. Constitutional Law. In the absence of an express grant of power to any of the three branches of government, the power must be exercised by the branch to which it naturally belongs.

6. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court has the inherent power to promulgate rules providing for an integrated bar.

7. Constitutional Law: Attorneys at Law. The practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government.

8. Constitutional Law. Compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a mandated association among those who are required to pay the subsidy. Second, compulsory fees can be levied only insofar as they are a necessary incident of the larger regulatory purpose which justified the required association.

PER CURIAM.

INTRODUCTION

Scott Lautenbaugh, a Nebraska attorney (petitioner), filed a petition with this court, asking that we abolish, strike, or repeal [286 Neb. 1019] chapter 3, article 8, of the Nebraska Supreme Court Rules, and make whatever other rule changes are necessary to remove any requirement that attorneys licensed in Nebraska be members of the Nebraska State Bar Association (Bar Association). We invited public comment on the petition and, on September 30, 2013,

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heard oral presentations on behalf of petitioner and the Bar Association.

We deny the petition to create a purely voluntary bar, but we determine that the rules creating and establishing the Bar Association should be amended in the light of developments in compelled-speech jurisprudence from the U.S. Supreme Court since integration of the Bar Association in 1937. In the sections that follow, we (1) recognize the continuing constitutional legitimacy of mandatory or unified state bar associations, (2) recall the constitutional basis for and reasons justifying integration of the bar in 1937, (3) summarize the experience in other jurisdictions, (4) examine the evolution of compelled-speech jurisprudence, and (5) focus on the relevance of " germaneness." Finally, we adopt the administrative changes we deem necessary to serve the important purposes of an integrated bar while both (1) ensuring that the Bar Association remains clearly within the permitted scope of constitutional jurisprudence and (2) avoiding the protracted litigation experienced elsewhere.

MANDATORY STATE BAR ASSOCIATIONS

Petitioner does not challenge the constitutionality of mandatory state bar associations. Analogizing state bar associations to " union-shop" arrangements, the U.S. Supreme Court established long ago that a state may constitutionally require a lawyer to be a member of a mandatory or unified bar to which compulsory dues are paid.[1]

The core of petitioner's grievance in this matter arises out of the 1990 holding of the Supreme Court in [286 Neb. 1020] Keller v. State Bar of California ,[2] where it took up the question of " permissible expenditures" of mandatory bar dues. Relying on Abood v. Detroit Board of Education ,[3] a governmental employee union case, the Court delineated the First Amendment boundaries of a bar association's expenditures of compulsory dues.

Abood held that a union could not expend a dissenting individual's dues for ideological activities not " germane" to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity. The difficult question, of course, is to define the latter class of activities.[4]

Thus, the Court held, " the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘ improving the quality of the legal service available to the people of the State.’ " [5]

It is that " difficult question" of the use of mandatory bar dues for " germane" versus

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" nongermane" activities which, as in some other states, forms the basis for the challenge to Nebraska's mandatory bar which is before us today.

[286 Neb. 1021] INTEGRATION OF BAR ASSOCIATION

In 1937, this court granted a petition to integrate the bar of the State of Nebraska.[6] At that time, the petitioners felt that the majority of the members of the bar favored integration by Supreme Court rule to provide better service to the public by the legal profession, to combat the unauthorized practice of law, and to improve the ethical standards of the profession. [7] In general, the 1937 petition sought rules of this court providing for the regulation of the bar of this state.

In that proceeding, this court for the first time pondered its power to integrate the bar by rule of the court, noting that the Nebraska Constitution did not expressly vest the power to define and regulate the practice of law in any of the three branches of government. We reasoned that in the absence of an express grant of power to any of the branches, the power must be exercised by the branch to which it naturally belonged. In concluding that this court had the inherent power to promulgate rules providing for an integrated bar, we explained that we had the exclusive power to regulate the conduct and qualifications of attorneys as officers of the court, that the proper administration of justice was the main business of a court, and that " [t]he practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government." [8] Because the bench and bar were so intimately related, we concluded that the problems of one were the problems of the other.

In our 1937 opinion, this court set forth the initial rules creating, controlling, and regulating the Bar Association. We formed the Bar Association " [f]or the advancement of the administration of justice according to law, and for the [286 Neb. 1022] advancement of the honor and dignity of the legal profession, and encouragement of cordial intercourse among the members thereof, for the improvement of the service rendered the public by the Bench and Bar...." [9] At that time, those persons who were residents of Nebraska licensed to practice law in the state constituted the membership of the Bar Association. All members were compelled to pay dues.

In that same opinion, we also observed that our inherent power to integrate the bar included the authority to rescind the rules providing for integration. We stated, " In the event of a failure of the plan to function as hoped, it can be corrected or abandoned by the amendment or revocation of the rule by the court in the exercise of its sound judicial discretion." [10] This petition presents the first attempt before this court to eliminate the mandatory bar in Nebraska.

ACTIONS ELSEWHERE TO ELIMINATE MANDATORY BAR

Other jurisdictions have been confronted with actions to abolish the mandatory bar.

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Thirty-two states and the District of Columbia require attorneys to become members of a bar and to pay dues as a condition of practicing law in that jurisdiction.[11] Aside from the temporary suspension of mandatory bar membership by the Wisconsin Supreme Court from 1988 to 1992, discussed in more detail below, no state association has converted from mandatory to voluntary status.[12] We note that the mandatory status of the Puerto Rico Bar Association was eliminated in 2009 by an act of the legislature, [13] and the [286 Neb. 1023] law in Puerto Rico now provides for voluntary membership.[14] However, in September 2013, legislation was filed to return to mandatory bar membership.[15]

We briefly recount recent efforts in Wisconsin, New Mexico, and New Hampshire to eliminate the mandatory state bar.

WISCONSIN BAR ASSOCIATION

Integration of the bar in Wisconsin has been a contentious matter from the beginning. Upon the first motion seeking integration, the Supreme Court of Wisconsin postponed the matter to a time after the lawyers in military service returned home from World War II.[16] When the matter of integration next came before the Supreme Court of Wisconsin, the court concluded that a voluntary bar was preferable and that the bar should not be integrated. [17] But upon the third motion for integration, the Supreme Court of Wisconsin determined that the bar should be integrated when proper rules and procedures had been adopted by further order of the court.[18] Thus, the Wisconsin bar became an integrated bar on January 1, 1957, under rules and bylaws promulgated by the court.[19] The U.S. Supreme Court later upheld a constitutional challenge to integration of the bar's membership.[20]

The Supreme Court of Wisconsin had further opportunities to consider whether the bar should remain integrated. In 1977 [21] and again in 1980,[22] the court approved continuation of the integrated bar.

[286 Neb. 1024] A challenge to the constitutionality of the integrated bar led to a temporary suspension of mandatory membership. In Levine v. Supreme Court of Wisconsin, [23] a federal district court found that the mandatory

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membership requirement violated the litigant's First Amendment rights of free speech and free association and was not justified by a compelling state interest. As a result, the Supreme Court of Wisconsin suspended enforcement of its mandatory bar membership rules.[24] On appeal, the Seventh Circuit reversed, concluding that Lathrop v. Donohue [25]— which upheld the constitutionality of integration— was binding precedent.[26] The Supreme Court of Wisconsin reinstated the integrated bar effective July 1, 1992. [27]

The bar in Wisconsin remains mandatory amid unrest. A member satisfaction survey conducted for the bar in 2008 revealed that a majority of the respondents— 57 percent— would vote for a voluntary association if given the opportunity to do so.[28] In July 2011, two attorneys filed a petition renewing their request that the Supreme Court of Wisconsin abolish the integrated bar.[29] The court, with three justices dissenting, denied the petition without a public hearing.[30]

STATE BAR OF NEW MEXICO

In 2003, two petitioners sought to modify a New Mexico Supreme Court rule [31] to change the bar from a mandatory bar to a voluntary bar. In response to the petition, the Board of [286 Neb. 1025] Bar Commissioners of the State Bar of New Mexico identified policy supporting a mandatory bar, such as a mandatory bar's being more able to promote justice and the legal system's ability to make justice obtainable. The board also identified policies supporting a voluntary bar, including the freedom of association and a voluntary bar's freedom and independence from the court. The New Mexico Supreme Court denied the petition without a public hearing.

NEW HAMPSHIRE BAR ASSOCIATION

In New Hampshire, the bar was first unified in 1968 for a trial period of 3 years.[32] The Supreme Court of New Hampshire reasoned that mandatory membership was " an integral part of the inherent power of this court to regulate the practice of law and to supervise" those engaging in the practice. [33] In 1972, the court reexamined unification, concluded that the New Hampshire Bar Association had benefited from the trial experience, and ordered the bar unified on a permanent basis.[34]

During the 2003 legislative session, the New Hampshire General Court enacted legislation which purported to require the bar association to place on the ballot with the election of the association's officers the question of whether membership in the bar association should be required.[35] The bar association brought an original action challenging the constitutionality of the legislative act, and the Supreme Court of

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New Hampshire declared the statute to be unconstitutional.[36] The court reasoned that " because we have elected to regulate the practice of law through unification, [the statute at issue], which permits de-unification without our involvement and contrary to our [286 Neb. 1026] specific order, encroaches upon inherent judicial authority." [37] The bar remains unified.[38]

FIRST AMENDMENT COMPELLED-SPEECH JURISPRUDENCE

Mandatory bars present issues under the First Amendment to the U.S. Constitution because members are required to join the group— and pay dues— in order to practice law. " These requirements implicate the First Amendment freedom of association, which includes the freedom to choose not to associate, and the First Amendment freedom of speech, which also includes the freedom to remain silent or to avoid subsidizing group speech with which a person disagrees." [39]

Since the integration and creation of our Bar Association in 1937, the legal landscape concerning compelled speech has evolved. As discussed below, the U.S. Supreme Court has determined that some mandatory associations, such as some unions and state bar associations, do not violate the First Amendment, because the forced speech serves legitimate purposes for the benefit of its entire membership. The critical inquiry in forced speech cases is whether the speech or activity being " forced" on the dissenting member is " germane" to the " group's constitutionally permissible purposes." [40] In Lathrop, [41] a Wisconsin attorney argued that his compelled membership in the state bar violated his rights under the 14th Amendment to the U.S. Constitution because the bar engaged in political activities which he opposed. The U.S. Supreme Court reasoned that the bulk of the bar's activities served the function of elevating the educational and ethical standards of the bar in order to improve the quality of legal services available to the citizens of the state. The Court stated:

[286 Neb. 1027] We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity.[42]

The Court found no violation of the 14th Amendment by the requirement that lawyers practicing in the state become members of the state bar and pay reasonable annual dues, but the Court reserved judgment on the attorney's claim that his free speech rights were violated by the bar's use of his mandatory dues to support political activities.

In Abood v. Detroit Board of Education, [43] every local governmental employee represented by a union, even though

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not a union member, was required to pay to the union, as a condition of employment, a service fee equal in amount to union dues. The U.S. Supreme Court considered whether that arrangement violated the constitutional rights of employees who object to public-sector unions or to various union activities financed by the compulsory service fees. The Court reasoned:

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.[44]

Thus, the Court held that the agency-shop clause was valid insofar as the service fees were used to finance expenditures [286 Neb. 1028] by the union for purposes of collective bargaining, contract administration, and grievance adjustment.

In Teachers v. Hudson, [45] employees who did not belong to a union challenged the procedure used to determine the proportionate share that they were required to contribute to support the union as a collective bargaining agent, alleging that it violated their 1st and 14th Amendment rights and permitted the use of their proportionate shares for impermissible purposes. The U.S. Supreme Court held that " the constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." [46]

As noted at the outset of our opinion, it is the seminal and oft-cited case of Keller v. State Bar of California [47] which is the foundation of this petition and, indeed, most claims challenging mandatory state bar associations. In Keller, members of the State Bar of California sued the bar, alleging that it violated their rights under the First Amendment by using their membership dues to finance certain ideological or political activities to which they were opposed. The Supreme Court observed that the relationship of a state bar and its members was analogous to the relationship of employee unions and their members and that agency-shop laws were enacted to prevent those who receive the benefit of union negotiation but who do not join the union and pay dues from avoiding paying their fair share of the cost of a process from which they benefit.

Furthermore, the Court stated that it was appropriate that all of the lawyers who derive benefits from being admitted [286 Neb. 1029] to practice law " should be called upon to pay a fair share of the cost of the professional involvement in this effort." [48] The Supreme Court determined:

[T]he compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane

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to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.[49]

In order to define activities not germane to the bar association's goals, the guiding standard is " whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or ‘ improving the quality of the legal service available to the people of the State.’ " [50] The Court declared that " an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson ." [51]

United States v. United Foods, Inc. [52] teaches that the test to determine what group speech is constitutionally permissible is not whether the speech is political or ideological in nature, but, rather, whether the speech is germane. The Supreme Court iterated that " speech need not be characterized as political before it receives First Amendment protection" [53] and that " [l]awyers could be required to pay moneys in support of activities that were germane to the reason justifying the compelled association in the first place, for example, [286 Neb. 1030] expenditures ... that related to ‘ activities connected with disciplining members of the Bar or proposing ethical codes for the profession.’ " [54]

The germaneness of an expenditure by a mandatory bar for a nonideological activity was considered in Romero v. Colegio de Abogados de Puerto Rico . [55] In that case, the mandatory bar in Puerto Rico required members to purchase life insurance from its group life insurance program. There was no provision which would allow a member to refuse the life insurance and retain the portion of the member's dues that would otherwise have been spent on life insurance premiums. The First Circuit determined that the required payment for group life insurance was unconstitutional, because it was not germane to the bar association's purpose of regulating the legal profession and improving the quality of legal services. As the First Circuit stated, " [T]hat an individual may be compelled to associate and financially contribute for some purposes does not mean she may be compelled to associate and financially contribute for all purposes." [56]

Likewise, in Kingstad v. State Bar of Wis., [57] three Wisconsin attorneys objected to the state bar's use of a portion of their mandatory dues to fund a public image campaign. The Seventh Circuit held that in order to withstand scrutiny under the First Amendment, expenditures by the state bar which are funded by mandatory dues must be germane to legitimate purposes of the bar, regardless of the ideological and political nature of the activity. In other words, a bar member may not, under Kingstad, be compelled to subsidize " nongermane" activities of any type. The Seventh Circuit determined, however, that the disputed public image campaign— which had the goal of improving the public's perception

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of Wisconsin lawyers— was germane to the legitimate purposes of the bar, because the [286 Neb. 1031] expenditure was reasonably related to the purpose of improving the quality of legal services.

Most recently, the legal landscape was again altered to some degree with Knox v. Service Employees Intern. Union, [58] wherein the U.S. Supreme Court considered whether a union could require objecting nonmembers to pay a special fee for the purpose of financing the union's political and ideological activities without running afoul of the First Amendment. The Supreme Court recalled that it had held " [t]he First Amendment ... does not permit a public-sector union to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining." [59]

The Knox Court cast doubt on the constitutional validity of opt-out systems for dissenting members. The Court stated, " By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate." [60] The Knox Court further stated, " Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all." [61] With regard to the collection of special assessment dues at issue in Knox, the Court determined that " the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out." [62] We note that the Knox Court did not strike down the use of an opt-out system altogether, but the concurrence points out that its continued viability is in doubt, stating that " while the majority's novel rule is, on its face, limited to [286 Neb. 1032] special assessments and dues increases, the majority strongly hints that this line may not long endure." [63]

RELEVANCE OF " GERMANENESS"

The proponents and opponents of the mandatory bar disagree on the relevance of germaneness under Keller [64] and Kingstad .[65] The Bar Association contends that Keller and its progeny require only that objecting members not be required to pay for nongermane political and ideological lobbying. Contrarily, an opponent of the mandatory bar argues that under Kingstad, it is no longer enough that an objecting member's mandatory dues not be used for ideological and political activities by the Bar Association; rather, the mandatory dues must be used only for germane purposes, regardless of the nature of the activity.[66]

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One commentator and supporter of the mandatory bar, who submitted comments on behalf of the Bar Association, concedes that Kingstad is a " partially contrary opinion" to the bar's view that Keller focuses primarily on the political or ideological nature of the bar's activities, not its germaneness.[67] In other words, the Bar Association believes that it can use mandatory dues to finance " nongermane" activities so long as the activities are not " political and ideological." [68] It is urged that Kingstad is a misinterpretation of Keller and its progeny. That argument is premised on the view that the U.S. Supreme Court's " characterization of Keller" in United Foods, Inc., [69] [286 Neb. 1033] the principal foundation of the Kingstad holding, cannot be used to support a " limitation on non-ideological and nonpolitical speech expenditures" of a bar association because it takes that characterization " out of context and tries to make it stand for too much." [70]

However, the Kingstad analysis and its reliance on United Foods, Inc. appear to be reinforced by the U.S. Supreme Court's recent Knox opinion. The Knox Court explained its decision in United Foods, Inc. as follows:

We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a " mandated association" among those who are required to pay the subsidy.... Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a " compelling state interes[t] ... that cannot be achieved through means significantly less restrictive of associational freedoms." ... Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a " necessary incident" of the " larger regulatory purpose which justified the required association." [71]

That second criterion set forth in Knox reinforces the Kingstad " germaneness" analysis and the significance of that factor in protecting " associational freedoms." The two-part Knox test focuses directly on the United Foods, Inc. characterization of Keller despite the " mundane commercial nature of [the] speech." [72]

Thus, there appears to be ample support for the view expressed in Kingstad that germaneness is central to a modern view of Keller.

[286 Neb. 1034] ADMINISTRATIVE RESOLUTION

Having said all that, however, we need not today decide the precise boundaries of First Amendment compelled-speech jurisprudence in 2013. The nature of the proceeding before this court, i.e., a petition for a rule change under the court's inherent authority, does not require us to resolve a case or controversy between two parties as would a proceeding under this court's appellate or original action jurisdiction. The present petition requires this

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court to assess the future and the structure of the mandatory bar in Nebraska at an administrative level and determine, based on trends in the law since 1937, how to best meet the needs of the judicial system, Nebraska attorneys, and the citizens of this state.

As noted at the outset, there were several important reasons underlying our 1937 decision to integrate the bar in Nebraska.[73] Those reasons still exist and remain valid justifications for a mandatory bar to this day. This court recognized in 1937 that " a few unethical practitioners ha[d] degraded the public esteem of the bar as a whole." [74] Our decisions in disciplinary cases since 1937 demonstrate the continued necessity of regulating the bar and ensuring that ethical rules for lawyers are maintained and enforced. This court also observed in 1937 that informed public opinion

favor[ed] bar integration by supreme court rule as a means of providing better service to the public by the legal profession, of effectively combating the unauthorized practice of law, and of improving the ethical standards of the profession and giving to it the high public esteem that it should enjoy. [75]

The demand for additional legal services has grown exponentially since 1937. In this age of instantaneous communications reaching to virtually every household, the need to combat the unauthorized practice of law presents new challenges. And [286 Neb. 1035] justifying the public's favorable view of the practicing bar remains a vital reason for an integrated bar.

Furthermore, the laws enacted by our Legislature and constitutional provisions adopted by the citizens of this state indicate that the people of Nebraska have come to rely on the existence of the Bar Association and depend upon this court's oversight of that association and the practice of law.[76]

In our view, the best solution is to modify the court's rules creating and establishing the Bar Association (and other related rules) to limit the use of mandatory dues, or assessments, to the regulation of the legal profession. This purpose clearly includes the functions of (1) admitting qualified applicants to membership in the Bar Association, (2) maintaining the records of membership, (3) enforcing the ethical rules governing the Bar Association's members, (4) regulating the mandate of continuing legal education, (5) maintaining records of trust fund requirements for lawyers, and (6) pursuing those who engage in the unauthorized practice of law. The mandatory Supreme Court assessments supporting these functions will be paid to the Bar Association on behalf of the Nebraska Supreme Court in much the same way that the existing disciplinary assessment is administered. By limiting the use of mandatory assessments to the arena of regulation of the legal profession, we ensure that the Bar Association remains well within

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the limits of the compelled-speech jurisprudence of the U.S. Supreme Court and avoid embroiling this court and the legal profession in unending quarrels and litigation over the germaneness of an activity in whole or in part, the constitutional adequacy of a [286 Neb. 1036] particular opt-in or opt-out system, or the appropriateness of a given grievance procedure.

The remaining activities of the Bar Association will be financed solely by revenues other than mandatory assessments. Obviously, voluntary dues would be a significant portion of those revenues. Voluntary bar dues fall outside the realm of the compelled-speech jurisprudence. Many members of the Bar Association may well elect to pay the voluntary dues assessment— particularly if the Bar Association strictly adheres to the use of such funds for purposes clearly benefiting the bar as a whole and avoids entanglement in ideological or political issues or legislation. The Bar Association has, over the years, developed and administered many laudable and worthwhile programs which have served the legal profession well. The Volunteer Lawyers Project with its legal self-help desks, the Nebraska Lawyers Assistance Program, the Casemaker Digest, its continuing legal education programs, and the SCOPE mentoring program are but a few of the worthy services offered by the Bar Association. Such services and programs and others like them can continue to thrive with the aid of voluntary dues, grants, and gifts from those who choose to support the voluntary components of the Bar Association.

We disagree with the parade of horrors predicted by both petitioner and the Bar Association regarding such an arrangement. Petitioner cautioned during his oral presentation that such a bar would be " cumbersome" compared to a purely voluntary bar. But petitioner's approach fails to preserve the regulatory structure erected beginning in 1937 and would abandon the public's reliance upon the existence of a mandatory bar. And our prior segregation of a bar-disciplinary assessment clearly demonstrates that administrative issues can be managed easily. Thus, we conclude that petitioner's fear is unfounded. The Bar Association, on the other hand, asserted that having to perform an item-by-item germaneness analysis would be " not workable" and " way too expensive." But our approach entirely avoids any such difficulty. We recognize that we have intentionally chosen to draw the line in a manner that forgoes the opportunity to expend mandatory assessments for some [286 Neb. 1037] purposes that might well be adjudged as germane. By drawing the line for use of mandatory bar assessments well within the bounds of the compelled-speech jurisprudence, we ensure that the assessments— which will be administered by the Supreme Court— will be used only for activities that are clearly germane. Here again, our experience with the disciplinary assessment shows that this separation between mandatory and voluntary dues can be readily accomplished. And by drawing the line in this way, we will clearly avoid the morass of continuing litigation experienced in other jurisdictions.

CONCLUSION

Although we reject petitioner's request for complete deunification of the Bar Association, we sustain the petition to the extent that we amend this court's rules to limit the use of mandatory bar dues, now to be referred to as " mandatory membership assessments," to the regulation of the legal profession. The Bar Association may collect voluntary dues to finance nonregulatory activities which may benefit the legal profession as a whole. We attach to this opinion the necessary rule changes in chapter 3, " Attorneys and the Practice of

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Law," of the Nebraska Supreme Court Rules, which include amendments to the following articles thereof:

* Article 1: Admission Requirements for the Practice of Law;

* Article 3: Discipline Procedures for Lawyers;

* Article 8: State Bar Association; Creation; Control; and Regulation;

* Article 9: Trust Fund Requirements for Lawyers; and

* Article 10: Unauthorized Practice of Law.

* Nebraska Commission on Unauthorized Practice of Law Administrative Rules, Regulations, and Procedures.

The amendments to articles 3 and 8, and the amendments to Neb. Ct. R. §§ 3-100 and 3-1010, shall be effective on January 1, 2014. In order to ensure an orderly transition of administrative functions regarding admissions, trust funds, and the unauthorized practice of law, all other amendments to the rules, regulations, and procedures identified above shall be effective on April 1, 2014.

[286 Neb. 1038] And we reiterate that the need for further amendments may arise. We have already quoted the recognition in our 1937 opinion that correction or abandonment of a rule may be accomplished by amendment or revocation in the exercise of our sound judicial discretion.[77] While abandonment and revocation are unlikely, correction by amendment may be required as the implementation of these changes progresses.

We recognize that as of the date of issuance of this opinion, the billing statements for bar dues for 2014 have been distributed. Indeed, this court just recently approved the rates for bar dues and the disciplinary assessment required for 2014. Therefore, in order to effectuate the directive of this court based on this opinion and ensure an orderly transition in the structure of the financing of the Bar Association, we direct that the Bar Association conduct, as soon as practicable, a special mailing advising each of its members that (1) the member must pay mandatory membership assessments established by the Supreme Court in the amount appropriate to the member's class of membership as set forth below:

Membership Class § 3-100(B) (Adm.) § 3-301(E) (Discipline) § 3-1010(B) (UPL) Total

Regular Active $25.00 $60.00 $13.00 $98.00

Junior Active $25.00 $60.00 $13.00 $98.00

Senior Active $25.00 $60.00 $13.00 $98.00

Judicial Active $25.00 $60.00 $13.00 $98.00

Military Active 0 0 0 0

Regular Inactive $12.50 $30.00 $ 6.50 $49.00

Emeritus Inactive 0 0 0 0

(2) the member may elect to pay the voluntary dues component of the Bar Association by paying such voluntary dues in an amount to be established by the Bar Association for the 2014 calendar year, with credit for any amount previously paid in excess of the mandatory membership assessments; and (3) if the member elects not to pay the voluntary dues component, the member shall be entitled to a refund of any amounts [286 Neb. ...


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