Can the Virginia State Bar use mandatory bar dues to fund its Diversity Conference, the way it funds its Young Lawyers and Senior Lawyers conferences?

Plain-English summary

Every Virginia lawyer must belong to the Virginia State Bar and pay mandatory dues. The Supreme Court of Virginia governs the VSB through its rules, and the VSB has several "conferences" (specialized subsets of the bar): Young Lawyers, Senior Lawyers, Conference of Local Bar Associations, and Diversity Conference. Three of those four are funded from mandatory dues. The Diversity Conference, established in 2009 to address representation gaps among lawyers, was the exception: it had to raise its own funds.

Senator Jennifer Wexton asked the Attorney General whether the VSB could legally use mandatory dues to fund the Diversity Conference too, and whether members who objected would need a procedure to challenge how their dues were spent.

Attorney General Herring's answer: yes, the funding would be constitutional, and no, no special opt-out procedure is required.

The legal framework comes from Keller v. State Bar of California (U.S. Supreme Court, 1990). A mandatory bar can use compelled dues to fund any activity that is "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." That's called the germaneness test. Keller drew an explicit boundary: bar dues can pay for activities like attorney discipline and ethical codes, but not for unrelated political advocacy like gun control campaigns or nuclear weapons freezes.

Herring concluded the Diversity Conference's mission falls on the permissible side. Promoting diversity in admission to the bar, in professional advancement, and in legal services delivery is plainly germane to "regulating the legal profession" and "improving the legal profession and the judicial system" (both of which are in the VSB's mission statement). The Supreme Court of Virginia, by approving the Conference's creation, had already implicitly recognized the connection to legitimate bar functions.

The data backed the germaneness claim. The opinion cited figures showing lawyers were less diverse than the population they serve. In Virginia, 89% of lawyers were white (vs. 70.5% of the state population), 4% were African-American (vs. 19.7%), 3% were Asian-American (vs. 6.3%), and 1% were Hispanic-American (vs. 8.9%). Herring's view was that addressing those gaps directly relates to ensuring Virginia's legal profession can serve all Virginians.

On the opt-out question, Herring distinguished Board of Regents v. Southworth (2000). That case involved a public university's mandatory student activity fee, where the Supreme Court required viewpoint-neutral funding allocation and noted that the Keller germaneness standard didn't apply in the university context. But Southworth specifically reaffirmed that the germaneness standard does apply to mandatory bar associations. Because the Diversity Conference passes the germaneness test, members have no constitutional ground to demand opt-out, any more than they could for the other three conferences.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The U.S. Supreme Court has continued to develop compelled-speech doctrine since Keller, including significant decisions on union dues (Janus v. AFSCME, 2018) and post-Janus litigation about whether the Keller framework remains good law in the context of mandatory bars. Verify current federal constitutional doctrine before relying on any specific First Amendment analysis here.

Common questions

What's the Keller germaneness test in plain terms?

A mandatory bar can use your dues to pay for activities related to regulating lawyers and improving legal services. It cannot use your dues to pay for political or ideological causes unrelated to those goals.

So could a Virginia lawyer opt out of paying the portion that funds the Diversity Conference?

Under this opinion, no. Because the Diversity Conference passes the germaneness test, members do not have a constitutional right to opt out, the same as for the other three conferences.

What kinds of activities CAN'T mandatory bar dues fund under Keller?

Per the opinion, a mandatory bar may not use compelled dues to fund activities of an ideological or political nature that fall outside regulating the legal profession or improving legal services. The opinion frames the line by purpose rather than listing specific prohibited causes.

What activities ARE clearly OK?

The opinion gives examples of dues-funded VSB activities: disciplining attorneys, making referrals, establishing professional standards, and providing continuing legal education. All sit squarely within regulating the profession and improving legal services.

Does the AG have to file a special amicus brief about Diversity Conference activities?

No. The AG's opinion is advisory; whether the VSB pursues mandatory funding for the Diversity Conference, and whether to petition the Supreme Court for the necessary rule change, are decisions for the VSB and the Court.

What if the Diversity Conference started doing political advocacy?

The germaneness test is activity-by-activity. If the Diversity Conference began advocating on issues unrelated to lawyer regulation or legal services, mandatory dues could not constitutionally pay for those specific activities. The opinion is clear that the test depends on what the Conference actually does, not just its stated mission.

Background and statutory framework

The Virginia State Bar was created as an administrative agency of the Supreme Court of Virginia in 1938 (Va. Code § 54.1-3910). All lawyers licensed to practice in Virginia must be members and pay annual dues (Va. Sup. Ct. R., Pt. 6, § IV, para. 11). The VSB's mission is to regulate the legal profession, advance the availability and quality of legal services, and improve the legal profession and judicial system.

The constitutional framework for compelled bar dues comes from a sequence of Supreme Court cases:

• Lathrop v. Donahue (1961): A state can require lawyers to join a mandatory bar and pay reasonable dues, even over the member's objections.
• Abood v. Detroit Bd. of Education (1977): Public employees cannot be compelled to subsidize union political advocacy they oppose.
• Keller v. State Bar of California (1990): Applied Abood-style reasoning to bar associations. Bar dues can fund activities germane to lawyer regulation and improving legal services, but not unrelated ideological causes.
• Glickman v. Wileman Bros. (1997): General principle that mandatory funding for collective programs sometimes covers speech members oppose.
• Bd. of Regents v. Southworth (2000): For public university student fees, the rule is viewpoint-neutral allocation, not germaneness. Reaffirmed Keller's germaneness test continues to apply to mandatory bars.
• Johanns v. Livestock Mktg. (2005): Compelled subsidies of government speech are constitutional.

The Diversity Conference was created by Supreme Court rule in 2009 on the VSB's petition. Its rule-based mission is to encourage diversity in admission to the bar and within the judiciary; facilitate diversity in professional advancement and leadership opportunities; and ensure that Virginia's legal needs are met across its diverse population (Va. Sup. Ct. R., Pt. 6, § IV, para. 9(j)).

The implementation step Herring's opinion addresses is that adding the Diversity Conference to the list of dues-funded conferences requires the VSB to petition the Supreme Court for a rule amendment.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 54.1-3910 (VSB creation)
• Va. Sup. Ct. R., Pt. 6, § IV (VSB rules)
• Goldfarb v. Va. State Bar, 421 U.S. 773 (1975)
• Green v. Va. State Bar, 278 Va. 162 (2009)
• Lathrop v. Donahue, 367 U.S. 820 (1961)
• Bd. of Regents v. Southworth, 529 U.S. 217 (2000)
• Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457 (1997)
• Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977)
• Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005)
• Keller v. State Bar of California, 496 U.S. 1 (1990)
• Schneider v. Colegio Abogados de Puerto Rico, 917 F.2d 620 (1st Cir. 1990)
• Thiel v. State Bar of Wisconsin, 94 F.3d 399 (7th Cir. 1996)
• Florida Bar In re David Frankel, 581 So. 2d 1294 (Fla. 1991)
• Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/Wexton_15-017.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

October 2, 2015

The Honorable Jennifer T. Wexton
Member, Senate of Virginia
20 West Market Street
Leesburg, Virginia 20176

Dear Senator Wexton:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the activities of the Virginia State Bar's Diversity Conference may legally be funded by bar members' mandatory dues, as those dues are used to fund other Bar Conferences. A related question is whether the State Bar must create a procedure by which a member may challenge use of a portion of his or her dues for any expenditure to which the member objects.

Background

The General Assembly created the Virginia State Bar (the "VSB") in 1938 as an administrative agency of the Supreme Court of Virginia. All attorneys licensed to practice law in the Commonwealth must be members of the VSB and are required by the Rules of the Supreme Court to pay annual membership dues. Revenue from mandatory bar dues is used to fund a variety of VSB activities, including disciplining attorneys, making referrals, establishing professional standards, and providing continuing legal education.

In keeping with its founding, the VSB continues to be organized and governed by the Supreme Court. Its mission statement is "(1) to regulate the legal profession of Virginia; (2) to advance the availability and quality of legal services provided to the people of Virginia; and (3) to assist in improving the legal profession and the judicial system."

As part of its efforts to improve the legal profession and judicial system, VSB petitioned the Supreme Court for, and the Supreme Court established, four different "conferences," or specialized subsets of the bar: the Senior Lawyers Conference; the Young Lawyers Conference; the Conference of Local Bar Associations; and the Diversity Conference. Revenue from mandatory bar dues is used to fund the Conference of Local Bar Associations, the Young Lawyers Conference, and the Senior Lawyers Conference. The Diversity Conference, however, receives no money from bar dues and must raise funds independently to support its activities. In order for the VSB to fund Diversity Conference activities from mandatory dues, it must petition for, and receive approval from, the Supreme Court.

Applicable Law and Discussion

The governing legal standard is germaneness: bar dues may be used only for expenses necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal services available to the people of the State.

The VSB is funded by mandatory dues. An attorney may be required to join a mandatory bar association and pay reasonable dues, even if he objects to some of its activities. Mandatory dues "to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the group." However, there are constitutional limits to the activities that may be lawfully funded with mandatory dues.

In Abood v. Detroit Board of Education, the U.S. Supreme Court articulated the general constitutional principle that requiring a person to pay for political or ideological speech to which he objects violates his First Amendment right of free speech.

Abood was followed by Keller v. State Bar of California, which addressed the issue of First Amendment limits on the activities of a state bar association that may be funded by mandatory dues. Keller acknowledged that because it is legitimate state policy to "[elevate] the educational and ethical standards of the Bar to the end of improving the quality of . . . legal service available to the people of the State," a state may require attorneys to join and pay reasonable dues to a mandatory bar association. However, the burden on speech imposed by compelled financial support for a professional organization such as a state bar is justified only by activities that promote a legitimate state interest in regulating the profession and improving the quality of legal services to the public. Accordingly, bar dues may be used to support only activities germane to those goals. A mandatory bar "may not . . . fund activities of an ideological nature which fall outside . . . those areas of activity."

Whether the purpose of the Diversity Conference meets the legal standard for being funded by mandatory bar dues.

Because the VSB may be funded by mandatory dues, which may constitutionally be used to fund any activities that are germane to regulating the practice of law or improving the quality of legal services to citizens, the ultimate question is whether the Diversity Conference exists and conducts activities for purposes that are germane to these legitimate state goals.

Law is one of the least diverse professions in the United States. According to recent national occupational figures, over 89.3% of lawyers are white, while 77.4% of the nation's total population is white. 4.2% of lawyers are African-American, as compared to 13.2% of total population. 5.1% of lawyers are Asian-American, as compared to 5.4% of total population. 5.1% of lawyers are Hispanic-American, as compared to 17.4% of total population. For Virginia, 89% of lawyers are white, as compared to 70.5% of the Commonwealth's total population. 4% of lawyers are African-American, as compared to 19.7% of population. 3% of lawyers are Asian-American, as compared to 6.3% of population. 1% of lawyers are Hispanic-American, as compared to 8.9% of population.

The Diversity Conference's mission is to foster and to encourage diversity in admission to the bar, as well as within the judiciary; to facilitate diversity in professional advancement and leadership opportunities; and to ensure that the changing legal needs of Virginia's citizens are met. Other responsibilities of the Diversity Conference are to "promote reforms in judicial procedure and the judicial system that are intended to improve the quality and fairness of the system" and to "improve the quality of the legal services made available to the people of Virginia."

It is clear that the promotion of diversity is intended to ensure equal and fair opportunities for all demographic groups to be admitted to the practice of law and to advance within the profession and the judiciary. The goal of diversity relates directly to two elements of the VSB's mission statement, namely "to regulate the legal profession of Virginia" and "to assist in improving the legal profession and the judicial system." Likewise, reasonable efforts to promote diversity within the bar help the profession better understand and serve the interests of the diverse demographic groups in Virginia, in keeping with a third element of the VSB's mission statement "to advance the availability and quality of legal services provided to the people of Virginia."

For these reasons, it is my opinion that the stated mission of the Diversity Conference creates no constitutional barrier, as articulated by Keller, to being funded by revenue from mandatory dues. Thus, should the VSB petition the Supreme Court to fund the Diversity Conference with revenue from mandatory dues, it is my opinion that such a petition may legally be approved. It is my further opinion that so long as the activities of the Diversity Conference are consistent with its stated goals, which reasonably relate to improving the delivery of legal services and improving the legal profession, rather than ideological or political goals, it may legally be funded by revenue from mandatory bar dues.

Whether the VSB must create a procedure by which members may challenge the legality under Keller of particular bar expenditures.

The final question to be addressed is whether funding the Diversity Conference with bar dues would require the VSB to create a procedure by which members who object to activities of the Diversity Conference could challenge the portion of their dues used to provide that funding.

The United States Supreme Court discussed procedures by which persons may challenge the use of mandatory fees or dues to support activities to which they object on First Amendment grounds in Board of Regents v. Southworth. Southworth held that it may be constitutional for a public university to use mandatory student activity fees to partially fund student organizations that engage in political or ideological speech objectionable to some students so long as there is viewpoint neutrality in the allocation of funding support.

The Court noted, "[t]he standard of germane speech as applied to student speech at a university is unworkable . . . and gives insufficient protection both to the objecting students and to the University program itself." For that reason, the Court did not rule on the legality of funding any particular student activity with mandatory student fees, as it and other courts have done for various bar organizations. Of particular importance, while Southworth held the Keller standard of germaneness to be inapplicable in the context of a public university, it reaffirmed that it remains fully applicable to mandatory bar and trade associations.

In short, Southworth stands for the proposition that there must be viewpoint neutral funding for extracurricular activities at a public university. It does not require viewpoint neutral funding for activities of professional associations such as the VSB. Professional associations remain subject to the "germaneness" standard.

There is nothing unique about the Diversity Conference by which it alone, among all the numerous and varied activities of the VSB, would require opt-out or challenge procedures if funded by bar dues. Like the other three conferences, its purpose is germane to the practice of law, and its purpose is also to improve the quality of legal services to citizens. It may be that not every attorney approves of every activity by the VSB, but the legal standard is not whether an individual attorney objects to a particular bar activity or expenditure, it is whether the activity or expenditure is reasonably related to the regulatory purpose of the organization.

Conclusion

For the foregoing reasons, it is my opinion that the VSB's efforts to promote diversity in the legal profession represent a legitimate state interest, and that promoting diversity is reasonably related to regulating the legal profession and improving the quality of legal services to the public. Accordingly, it is my opinion that it would be constitutionally permissible for the Diversity Conference to be funded by mandatory state bar dues. It is my further opinion that the VSB is not required to create procedures through which members may challenge the use of dues for any bar activity to which they object, so long as its activities remain germane to the practice of law.

With kindest regards, I am

Mark R. Herring
Attorney General