The dues we have to pay: mandatory, Randatory, or no tory at all?
Richard C. Gibbs, Q.C.
I am no longer a CBA member - I delivered my letter of resignation on May 16, 2002. The reasons for my leaving the CBA have been publicized [Lawyers Weekly, May 31, 2002], but they are not germane to my topic today.
At the Benchers' retreat meeting on Saturday, June 29, 2002, CBA National President, Eric Rice, QC, BC Branch President-elect, David Paul and BC Branch Secretary-Treasurer, Robert Brun addressed the Benchers with a view to having the Benchers continue the 54-year practice of including the CBA fee in the annual practice fee resolution.
In the course of his presentation, Mr. Rice assured the Benchers that he would quickly introduce a provision whereby Law Society members who are "conscientious objectors" to CBA membership would not have to join the CBA but would have to pay the CBA annual fee. This was referred to in his presentation, and in Bencher questioning of him, as a "Rand Formula." Let us be quite clear then that we have seen the death of universal CBA membership in BC. All that is under consideration is whether "universal pay" will be substituted for it.
Following the presentations by Messrs. Rice, Paul and Brun, the Benchers voted overwhelmingly to include an amount equivalent to the CBA fee in the annual practice fee resolution they will put forward to the Law Society membership at the AGM on September 20, 2002. From discussion with my colleagues at the Bencher table, it was clear that the "Rand Formula" found favour with them.
Let's recall that Justice Ivan Rand in 1947 acted as arbitrator in a strike of 17,000 workers against the Ford Motor Company. He reasoned that all workers in a bargaining unit benefited from a union-negotiated contract and that, as a result, they should all have to pay union dues even though they need not join the union. This is the "freeloader" argument. Let's see how that applies to BC lawyers who choose not to belong to the CBA.
President Rice informed the Benchers that BC lawyers send about $3 million to the CBA in annual dues. The National Office of the CBA retains about $1.8 million of that for national purposes. The CBA National Office sends about $1.1 million back to the BC Branch for its provincial work. The split is roughly 60:40 of BC lawyers dues for national : provincial purposes.
Additionally, the BC Branch of the CBA levies Law Society members $65 each, which goes directly to it for provincial CBA purposes; that levy raises about $585,000 annually.
The total cost per senior (5+ years in practice) BC lawyer is $437.74 annually. So, what do BC lawyers get for their Randatory $437.74 if they don't get the benefits of CBA membership?
Then CBA (BC Branch) President Margaret Ostrowski, QC, addressing the Benchers April 1, 2001, described the CBA as "a uniquely political voice for the lawyers of British Columbia." I think Ms. Ostrowski spoke accurately when she so described the CBA. However, that fact is precisely what undercuts this aspect of the case for compelled universal membership. Within our membership will be found the whole spectrum of political views, from the left of Marx to the right of Newt Gingrich. So, what's the case for compelling association with a "uniquely political voice"?
Even if former President Ostrowski meant that the CBA was a "political voice" for the profession in that the CBA takes up matters that do not engage the Law Society's mandate to protect the public but are otherwise of significant importance to the profession, do members get a sufficient benefit from that voice that they should be compelled to financially lubricate its throat?
The decision of the BC Branch of the CBA to announce a "constructive engagement" agreement with the Attorney General on the morning of the Law Society's Special General Meeting of April 12, 2002 led rather directly to the BC Branch being requisitioned to hold its own Special General Meeting on June 12, 2002, at which the membership directed cancellation of the constructive engagement agreement.
What is the argument for compelling Law Society members, as a condition of their practice, to financially support a political voice with which they may passionately disagree? Doesn't it more accord with our values to let folks voluntarily sing in a choir with the CBA's basso profundo?
In May, 2002, the Law Society hired MarkTrend to poll our membership on the question of voluntary versus compulsory membership in the CBA. The sample of 404 members was balanced for proportion to the total membership in terms of gender, practice location, insurance status and years of call. The results should be accurate +/- 4.9%, 19 times out of 20. (Survey results are available in Resource Library/Surveys at www.lawsociety.bc.ca.)
To the question "In your opinion, should membership in the Canadian Bar Association be compulsory for all BC lawyers or should it be voluntary?" the sample of the membership responded: Voluntary 54%; Compulsory 42%; Don't Know 4%.
The spread of 12% cannot be covered by the margin of error.
As a result, we can safely say that more lawyers in BC believe that CBA membership should be voluntary than believe it should be compulsory, and that those who believe it should be voluntary are likely an absolute majority of the lawyers in BC.
Over the past five years, turnout for the Law Society Annual General Meeting has averaged about 2%. It is a simple matter for the CBA to mobilize its stalwarts to defeat a voluntariness resolution when the turnout is no more that 200-300 lawyers. Funnily enough, compulsory membership is thereby imposed on the majority who say it should be voluntary.
What does the CBA get for comfort?: 74% of BC lawyers said they would join the CBA if it was voluntary; 12% would not join if membership was voluntary. (Of the balance, 8% said it would depend on how much it would cost; 1% said it would depend on who would pay for it; 5% said they didn't know.)
In Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Prince Edward Island, Newfoundland, Yukon Territory, Northwest Territories and Nunavut, CBA membership is voluntary; only New Brunswick and British Columbia make their members join the CBA. Each CBA National press release concludes, "Some 37,000 lawyers, notaries, law teachers, and law students from across Canada are members."
According to the affidavit of Jean Whittow, QC, Deputy Executive Director of the Law Society of BC, filed in our Proceeds of Crime (Money Laundering and Terrorist Financing) Act litigation, there are 81,000 lawyers and Quebec notaires in Canada. Simple arithmetic tells us that 46% of Canadian lawyers belong to the CBA. Can it really be true that 54% of Canadian lawyers are "freeloaders," taking the benefits of CBA membership without paying their fair share?
Those in the Randatory camp inevitably raise the importance of CBA sections for the continuing legal education of lawyers and for fostering collegiality and professional values among lawyers. This contention can only be phrased as an opportunity to engage in section activities, as we Benchers don't mandate any compelled CLE and as section activities are only available in the larger centres in the province while lawyers in remote communities are still required to buck up for the CBA.
Further, membership in, say, the Trial Lawyers' Association, and participation in its listserv, would go a long way to providing CLE opportunities and fostering collegiality. The major vehicle for CLE in the province is, obviously, the Continuing Legal Education Society of BC with its courses, publications and website. There are other entities putting on CLE for lawyers (e.g., the Federation of Law Societies' Criminal Law and Family Law Programs). Private companies advertise their CLE offerings.
CBA sections are available in most, if not all, of the voluntary membership jurisdictions in Canada: I counted 63 sections on the Alberta CBA website, for instance. Can it be said that non-CBA members in Alberta are "freeloaders" for not paying dues to support Alberta CBA sections?
What's the situation in the medical profession? The BC Medical Association negotiates changes in the schedule of benefits payable to physicians under the provincial health care plan. It is a voluntary association claiming 75% membership from physicians in British Columbia. The Ontario Medical Association introduced a Rand formula in November, 1997, by which it would send the Ontario Health Insurance Program a list of those physicians who had not paid dues and OHIP would deduct the $990 to pay OMA fees for the 1,600 Ontario doctors who choose not to belong to OMA. The move was highly controversial - for an example, go to www.opaonline.com to see what the Ontario Physicans' Association thinks of it.
For my purposes, it is noteworthy that BCMA remains a voluntary association and OMA a Randatory association, even though those associations actually negotiate the fee schedules from which all physicians benefit. How can it be said that the CBA does anything comparable for which it would be entitled to a Randatory fee?
When we, as members at the Annual General Meeting, act in the name of the Law Society of British Columbia to set the practice fee, we are utilizing the coercive power of the state-given monopoly to extract money from our members for the privilege of practising law, for the privilege of earning their livelihoods and serving their clients. I have no wish to enter the debate before the courts as to whether we can make CBA membership compulsory; now that we have CBA-lite, I want to take up the question of the morality, the appropriateness, of making our members pay fees to the CBA when they choose not to belong to that organization. So far as I am concerned, we have no business using delegated state power in that way.
News of my resignation from the CBA brought a letter from William H. Hurlburt, LL.D. (Hon.), QC, of Edmonton. Bill was a Bencher of the Law Society of Alberta for many years and it was in that capacity that I met him. He is the author of a wonderful little book published in 2000: The Self-Regulation of the Legal Profession in Canada and in England and Wales. Bill wrote:
There is, in my submission, no legitimate reason for a law society to use its delegated powers to compel its members to belong to, or to pay dues to or for the benefit of, a private organization of the legal profession. No doubt there are many lawyers, possibly a majority of lawyers, who want a strong voice for the legal profession and who perceive the CBA as being that strong voice and who feel strongly that all lawyers should belong to the CBA and support it.
No doubt the CBA wants, or even needs, the compulsory fees, and wants to be able to claim that it speaks for all lawyers in those provinces with universal membership. But the fact that a private group wants to have a strong voice does not, in my submission, justify a law society in using its public powers to compel individual lawyers to pay fees or to be formally recorded as members of that strong voice. Nor does resentment of free riders, if it exists, justify applying the force of the state to compel non-CBA members to make a contribution to the CBA.
. LSBC's powers are held by LSBC for the purpose of regulating the legal profession - or, if you prefer, upholding and protecting the public interest in the administration of justice - and the resulting fact, in my submission, that it is not right to use those powers to require individual lawyers to contribute their money or their names to a private organization the primary function of which is to serve lawyers, judges, law teachers and law students.
Bill winds up writing:
To put my submission in a nutshell, neither the governing body of a law society nor the majority of its members ought to use its powers, which are delegated to the law society for the regulation of the legal profession in the public interest, to compel a minority of the law society's members into membership of, or contribution to, an organization, however worthy, the primary purpose of which is to serve, not the public, but the members of the organization.
Bill is no anti-CBA crank; he has been a member of the CBA since he started practice and has had an honorary life membership bestowed on him by the Alberta Branch such that they no longer ask him for annual dues.
I have a strong belief that we've had this issue wrong for many years now. I also believe that the CBA has been denied the benefit of the discipline that it would impose on itself if it had to compete for members' support. I consider it long past time that we join the principled provinces that leave it to their members' own good judgement whether to join the CBA.
Some members will, I expect, move to amend the practice fee resolution this year. (This can be done only by resolution of at least two members submitted by August 11, 2002: see Rule 1-6(6).) It is my hope that a principled and vigorous debate of this important issue will occur at this September's AGM. But, as I expect to be in the chair instead of being one of the debaters, I'll get my points across in this forum. A friend of mine said it well recently: "Freedom does not need to justify itself; coercion bears the onus of justification."