Virginia Lawyers Weekly
I read with interest your editorial of June 3, 2013, regarding the Diversity Conference of the Virginia State Bar. In it, you noted the creation of the conference amid a certain amount of controversy in 2010, and advocated for modifying the compromise reached at that time by permitting funding of the conference in the future using mandatory dues dollars from the Virginia State Bar budget. You assert that this is the only right and fair course of action for the VSB in order to assure equal treatment for the conference with other constituent elements of the state bar.
Your editorial is both incompletely researched and does a disservice to those of us who opposed creation of the conference in 2010 as a part of Virginia’s unified bar. You catalog some of the very worthwhile and commendable activities and programs of the conference to date, concluding that none of them seems very “political,” and therefore not permissibly funded from mandatory dues dollars under the U.S. Supreme Court decision in Keller v. State Bar of California and its progeny. You then reference “murmurings” by some in 2010 about possible problems for the VSB under Keller if the conference was approved and funded by the VSB.
There were certainly more than just “murmurings” at that time by some of us who believed strongly in the goals and objectives of those supporting creation of the conference, yet also wanted to protect the VSB and its principal mission from attacks that could well have been successful under Keller. That decision prohibits unified state bars like ours from using mandatory dues dollars to fund activities and initiatives that are either political or ideological in nature; such dues money can only be used consistent with the first amendment rights of bar members to regulate the legal profession and improve access to the legal services available to the citizens of the state.
I wrote one of the letters commenting on the proposed creation of the conference in 2010, noting that our bar is one of the few mandatory bars in the country that has not been sued by one or more dissenting members over alleged misuse of their dues dollars. Drawing the line between permissible and impermissible activities and initiatives under Keller is, as the Court noted in its opinion, often difficult, but the VSB has usually erred on the side of caution in this area. That has served us well over the years, since establishing the accounting and arbitration procedures required once a Keller challenge is made by a dissenting bar member is very expensive and time consuming for the bar.
The issue is not whether the activities and programs of the Diversity Conference are worthwhile and commendable; most of us believe they are and should be supported and encouraged. The question is whether they should be carried out under the auspices of, and with funding from the state’s unified bar, or whether they can best be accomplished through the many voluntary statewide and local bar associations that exist in Virginia. The VSB has regularly been challenged by these associations to maintain its focus on its regulatory and access to legal services functions, and to leave to them the important work of law reform, advocating for or against social policies, and accomplishing valuable, but often controversial ideological initiatives.
Should we now decide in light of the record of accomplishment of the Diversity Conference to this point, it having received the approval of both the VSB Council and the Supreme Court of Virginia as a voluntary component of the VSB, that it should begin receiving funding from the mandatory dues paid by VSB members, I continue to believe we will put the VSB at serious risk of a Keller challenge from members who do not agree this is constitutional. If that happens, it will unnecessarily put at risk the regulatory activities we all agree constitute our main mission by diverting resources away from that mission and into defending our actions and establishing the procedures required under Keller. It could, as has happened elsewhere, even trigger a move to abolish the unified bar in Virginia. Those are real risks that should not be taken lightly, and it is wrong to accuse those of us who are not willing to take them of insensitivity, if not hostility, to the goals and objectives of the conference and its members and supporters.
Thomas A. Edmonds