North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: FAX: Norma S. Harrell Special Deputy (919) 716-6900 (919) 716-6763
August 16, 2001
L. Thomas Lunsford, II Executive Director North Carolina State Bar 208 Fayetteville Street Mall Post Office Box 25908 Raleigh, North Carolina 27611-5908

Advisory Opinion: Use of Mandatory District Bar Dues For BarCARES Program

Dear Mr. Lunsford:

You request our opinion as to whether local district bar organizations may fund BarCARES programs through mandatory dues imposed upon their members. Set out below is our understanding of the BarCARES program, the proposal for participation by district bars, and the legal and constitutional issues raised by the proposal.

The North Carolina State Bar is created as an agency of the State of North Carolina in Article 4 of Chapter 84 of the North Carolina General Statutes. In order to practice law in North Carolina, generally, one must be an active member of the State Bar in good standing and have paid the mandatory dues authorized by N.C.G.S. § 84-34 “as a service charge for the maintenance of the several services authorized by” Article 4. See N.C.G.S. § 84-16. District bars are subdivisions of the State Bar, and they may impose mandatory annual fees or dues on their members and adopt rules and regulations “not inconsistent with” Article 4. N.C.G.S. § 84-18.1.

A proposal has been made for district bars to participate in BarCARES, a program initiated by the North Carolina Bar Association. Participation of a district bar in BarCARES would mean that a portion of the district bar dues required of attorneys in that district would be paid to certain mental health providers in exchange for providing each member of the district bar the opportunity to have counseling sessions with the mental health providers.

In order for the district bars to use their dues lawfully to finance BarCARES, the program must be consistent with Article 4 of Chapter 84. The statutory provisions contained in that Article relate principally to licensure of attorneys, discipline of attorneys and license revocation, and unauthorized practice of law. The State Bar Council is authorized by N.C.G.S. § 84-23 and other sections to "regulate the professional conduct of licensed attorneys" and to "take actions that are necessary to: ensure the competence of lawyers; formulate and adopt rules of professional ethics and conduct; investigate and prosecute matters of professional misconduct," and otherwise act regarding L. Thomas Lunsford, II August 16, 2001 Page 2

discipline, membership, certification of legal specialists, legal fees, and "determine whether a member is disabled." It also has authority under N.C.G.S. § 84-23.1 concerning prepaid legal service plans.

All of the powers and responsibilities imposed on the State Bar by statute relate to the competence and ability of attorneys and the protection of the public from incompetent attorneys or attorneys' actions that are or may be harmful to their clients or potential clients. The nature of these powers and responsibilities is consistent with the justification for the existence of the Bar, the protection of the public from incompetence or unethical actions harmful to clients or potential clients. Indeed, the North Carolina Supreme Court said long ago that the only justification for occupational licensing laws is the protection of the public. In an opinion written by then Justice (later Senator) Ervin, the Court explained that "a statute which prevents any person from engaging in any legitimate business, occupation, or trade cannot be sustained as a valid exercise of the police power unless the promotion or protection of the public health, morals, order, or safety, or the general welfare makes it reasonably necessary." State v. Ballance, 229 N.C. 764, 770, 51 S.E.2d 731, 735 (1949) (holding that licensure law for photographers infringed on rights under state constitution to enjoy the fruits of one's labor and not to be deprived of property except by the "law of the land"). See also Duggins v. North Carolina Bd. of Certified Public Accountant Examiners, 294 N.C. 120, 125, 240 S.E.2d 406, 410 (1978) (describing the certified public accountancy law as an exercise of police power "for the purpose of protecting the general public from unqualified and inexperienced accountants"). In a number of decisions, our appellate courts have recognized that the statutory authority and responsibility of the State Bar and the Board of Law Examiners stem from that need to protect the public. E.g., North Carolina State Bar v. Frazier, 269 N.C. 625, 630, 153 S.E.2d 367, 370 (upholding discipline of attorney on grounds that the "object of the regulations is to protect the public from unethical conduct"), cert. denied, 389 U.S. 826, 88 S. Ct. 69, 19 L. Ed. 2d 81 (1967); Bring v. North Carolina State Bar, 126 N.C. App. 655, 660, 486 S.E.2d 236, 239 (1997) (licensure requirements for attorneys based on legislative goal of "protection of the public interest by the maintenance of a competent Bar"), aff’d, 348 N.C. 655, 501 S.E.2d 907 (1998).

It is our understanding that the BarCARES Program as it is now constituted allows family members of attorneys to use this program and allows attorneys to receive services for problems that may not affect their professional services. While no case is exactly on point, we believe that concerns are raised by a program under which district bars compel attorneys, at risk of jeopardizing their right to practice law, to fund counseling sessions for other attorneys for problems that may not affect or threaten the quality of those attorneys’ professional services. We particularly question the authority of district bars to compel attorneys, as a condition of their right to practice law, to fund counseling sessions for family members of other attorneys. Please note that the United States Supreme Court has said that attorneys may sue to challenge the use of mandatory bar dues for purposes that infringe on an attorney’s first amendment rights. See Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1190). We also note that our Supreme Court, in different contexts, has invalidated or questioned governmental agencies’ authority to tax or assess persons engaged in a particular occupation for the benefit of other groups or only for certain members of the same group. See Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456, 223 S.E.2d 323 (1976) (if statute authorized assessment by one subgroup for benefit of others, it would raise a question of violation of North L. Thomas Lunsford, II August 16, 2001 Page 3

Carolina Constitution’s “law of the land” clause); Great American Insurance Co. v. Johnson, 257

N.C. 467, 126 S.E.2d 92 (1962) (unconstitutional to tax fire and lightning insurance to provide retirement funds for firefighters).

It is our opinion that the BarCARES Program can be a lawful use of mandatory bar dues as long as the Program is restricted to attorney members of the Bar and is directly related to addressing identifiable problems which are affecting, or which may in the future affect an attorney’s competence to practice law or professional conduct. Therefore, we suggest that the state Bar review this program in this context and direct any modifications determined to be necessary to address the current problems identified in this opinion. We emphasize that we cannot say with certainty how our courts would view a challenge to the funding through mandatory district Bar dues of the BarCARES Program either as it exists now or if it should modify it.

Sincerely,

Grayson G. Kelley Senior Deputy Attorney General

Norma S. Harrell Special Deputy Attorney General

cc: Larry Sitton