Utah Should Stop Forcing Lawyers to Pay for Speech They Don’t Support

April 14, 2021
By Jacob Huebert

As an attorney practicing in the state of Utah, Amy Pomeroy is required to join and pay annual fees to the Utah State Bar in order to practice law. But those fees are often used to pay for activities she doesn’t support. Now, she’s teamed up with the Goldwater Institute to say “no more.”

Pomeroy has seen the Utah State Bar use her mandatory fees to lobby the state legislature and to publish viewpoints she’d rather not promote. In 2019, for example, the Utah State Bar lobbied the state legislature to exempt lawyers from a proposed tax on professional services. And in its Utah Bar Journal, the State Bar has recently published statements that take or publicize positions on current political and ideological controversies.

Pomeroy, represented by the Goldwater Institute, has filed a lawsuit to challenge the requirement that she join a bar association and pay these mandatory fees. As the lawsuit points out, the state has no excuse for making lawyers like her join or pay a bar association, let alone one that engages in political advocacy. Twenty states already regulate the legal profession without infringing attorneys’ First Amendment rights, and there’s no reason Utah couldn’t do so as well.

But Utah isn’t exactly unique in this requirement: In 30 states, lawyers are forced to join and pay dues to a bar association as a condition of practicing law. And the bar associations they’re forced to join and pay aren’t government regulatory bodies; they don’t just make sure attorneys are qualified and behave ethically, as one might expect. Instead, they’re trade associations—and, all too often, they use members’ mandatory dues to take positions on controversial legislation, and to publish political and ideological speech, which might or might not have anything to do with the practice of law.

That means lawyers in those states are being forced to pay for other people’s political and ideological speech—something the First Amendment virtually never allows. And that’s why, across the country, the Goldwater Institute has filed several First Amendment lawsuits on behalf of lawyers who have been forced to join and pay dues to a bar association.

Pomeroy joins other attorneys represented by the Goldwater Institute who have sued to stop their states from forcing them to associate with and subsidize bar associations’ speech:

• In Oregon, Goldwater Institute clients Daniel Crowe and Lawrence Peterson opened their mandatory bar association’s monthly periodical only to discover that their dues were being used to publish harsh criticisms of President Trump they disagreed with. The U.S. Court of Appeals for the Ninth Circuit recently ruled that their challenge to mandatory Oregon State Bar membership could proceed.
• In Oklahoma, Goldwater Institute client Mark Schell saw the Oklahoma Bar Association use his mandatory dues to campaign against a controversial tort reform bill, lobby against proposed changes to the state’s method for choosing its judges, and publish views on various legal and political issues in its journal. His case is currently awaiting a decision from the U.S. Court of Appeals for the Tenth Circuit.
• In Louisiana, Goldwater Institute client Randy Boudreaux saw the Louisiana State Bar Association use his mandatory dues to advocate on controversial issues ranging from the death penalty to drug policy to social issues. It’s even used member dues to advocate for removing free enterprise education from the state’s high school curriculum. That case is currently awaiting a decision from the U.S. Court of Appeals for the Fifth Circuit.

Ultimately, the U.S. Supreme Court should hear one of these cases and declare that lawyers have the same First Amendment rights as everyone else and can’t be made to pay for other people’s politics just to pursue their profession.

You can read more about Amy Pomeroy’s case here.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.