Can a North Carolina district bar use mandatory dues from every attorney in the district to pay for a counseling program that also helps attorneys' family members?
Plain-English summary
L. Thomas Lunsford, II, the State Bar's Executive Director, asked the AG whether local district bar organizations could lawfully fund BarCARES through mandatory dues. BarCARES is a counseling program initiated by the North Carolina Bar Association. Under the proposed model, a portion of mandatory district bar dues would go to mental health providers, and in exchange every member of the district bar would have access to counseling sessions. The wrinkle: BarCARES at the time also allowed family members of attorneys to use the program, and the counseling could address problems that did not affect the attorney's professional services.
Senior Deputy AG Grayson Kelley and Special Deputy AG Norma Harrell wrote a careful, hedged answer.
The starting point is the constitutional purpose of mandatory bar dues. The North Carolina State Bar is a state agency created in Article 4 of Chapter 84. Active membership and mandatory dues are conditions of practicing law (G.S. §§ 84-16, 84-34). The dues fund "services authorized by" the article: licensure, discipline, attorney certification, professional ethics, and related public-protection functions. District bars are subdivisions of the State Bar and can charge their own mandatory dues, but their authority is limited to actions "not inconsistent with" Article 4 (G.S. § 84-18.1).
The North Carolina Supreme Court has been clear that the police-power justification for occupational licensing is public protection. In State v. Ballance, then-Justice Sam Ervin wrote that a licensing law "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." The same theme runs through Duggins (CPA licensing) and the State Bar discipline cases (Frazier, Bring). The State Bar's authority exists to protect the public from incompetent or unethical attorneys.
The U.S. Supreme Court added a related constitutional limit in Keller v. State Bar of California. Mandatory bar dues can fund the activities for which the bar exists (public protection and licensure), but not unrelated ideological or political activities. Attorneys can sue under the First Amendment if their mandatory dues are spent on activities outside the bar's core regulatory mission. The North Carolina Supreme Court has, in different contexts, also questioned governmental power to tax one subgroup for the benefit of other groups, citing the state constitution's "law of the land" clause (Arcadia Dairy Farms; Great American Insurance Co.).
Applying these principles, the AG was uncomfortable with BarCARES as proposed. Compelling attorneys (at risk of losing their license) to fund counseling sessions for other attorneys' family members, or for problems with no connection to professional competence, raises serious constitutional questions. The benefit to "the public" of subsidizing counseling for an attorney's spouse is too attenuated from the police-power justification for the State Bar's existence.
The AG's recommendation: BarCARES can be lawfully funded with mandatory dues if it is restricted to attorney members and directly addresses identifiable problems that are affecting (or that may affect) the attorney's competence or professional conduct. Family-member coverage and broad mental-health support unconnected to professional fitness should be funded some other way: voluntary contributions, bar association membership fees, charitable foundation grants, or the state's mental-health system. The AG was explicit that the office could not say with certainty how a court would rule on a constitutional challenge to BarCARES as it existed in 2001 or as modified.
The practical effect: district bars that wanted to participate in BarCARES needed to either (a) modify the program to limit covered persons to attorneys and connect the counseling to professional competence, or (b) use voluntary contributions for the broader program. The State Bar and the Bar Association did substantially restructure BarCARES in the years after this opinion, and the program continues to operate in modified form.
Currency note
This opinion was issued in 2001. 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 legal landscape on compelled bar dues continued to evolve after Keller, including Janus v. AFSCME (2018) and subsequent challenges to integrated state bars. BarCARES itself has been restructured. Anyone evaluating current dues-funded attorney wellness programs should consult current Supreme Court decisions on compelled subsidization, current State Bar guidance, and the current BarCARES program structure.
Background and statutory framework
The State Bar's police-power foundation. Article 4 of Chapter 84 creates the State Bar as a state agency. Section 84-16 requires active membership and payment of mandatory dues for the practice of law. Section 84-34 specifies that the mandatory dues are a "service charge for the maintenance of the several services authorized by" the article. This statutory framing is significant: the dues are not a general tax on attorneys; they are payment for specific regulatory services.
District bars as subdivisions. Section 84-18.1 lets each district bar impose mandatory annual fees on its members and adopt rules "not inconsistent with" Article 4. District bars are subordinate to the State Bar and constrained by the same public-protection mission. Any dues-funded district program must fit within that mission to be lawful.
The Ballance foundation. Justice Ervin's opinion in State v. Ballance (invalidating a licensing law for photographers as exceeding the police power) is the doctrinal touchstone. Licensing laws are exceptions to the constitutional right to pursue a lawful occupation. They can be sustained only when reasonably necessary to protect public health, morals, order, safety, or general welfare. Bar licensing fits that standard because incompetent or unethical attorneys harm clients and the public.
Why Keller matters. Keller v. State Bar of California held that mandatory bar dues can be used for "activities germane to" the state's interest in regulating the legal profession (admission, discipline, ethics) but not for political or ideological activities unconnected to that interest. The Keller line tracks the older Abood line on public-sector union dues. Attorneys subjected to compelled subsidization for non-germane purposes have a First Amendment claim.
The state constitutional layer. North Carolina's "law of the land" clause (Art. I, § 19) protects against government taking from one group for the benefit of another absent appropriate public purpose. Arcadia Dairy Farms and Great American Insurance Co. are not bar-dues cases, but the principle they articulate (a governmental assessment cannot lawfully redistribute from one subgroup of taxpayers to a particular benefited group without proper authority and public purpose) translates straightforwardly to mandatory bar dues. A program that takes attorney dues to benefit attorneys' family members might struggle under that principle.
Why the BarCARES family-member coverage was the sticking point. Attorney wellness has a plausible connection to public protection: an attorney with untreated depression, addiction, or marital stress may make professional mistakes that harm clients. A dues-funded program addressing those problems sits comfortably within the State Bar's police-power mission. But subsidizing counseling sessions for the attorney's spouse or children, however worthy, is harder to defend as "necessary" to public protection. The connection is attenuated.
The narrowing recommendation. The AG's recommended narrowing has two parts: (a) cover only attorney members, not family, and (b) tie the counseling to identifiable problems affecting (or potentially affecting) the attorney's competence or professional conduct. With those limits, the program tracks the State Bar's public-protection mission and survives both Keller and the state-constitutional analysis. Without those limits, the AG was unwilling to vouch for the program's constitutionality.
The hedge in the conclusion. The AG was careful to say that the office could not predict with certainty how a court would rule. Constitutional litigation is unpredictable, and an aggressive challenger could test even the narrowed program. The AG's recommendation was a risk-management posture: do the modifications and you are on more solid ground.
Common questions
Q: Could the State Bar fund attorney wellness through voluntary contributions rather than mandatory dues?
A: Yes. The constitutional concerns about compelled subsidization disappear when the contribution is voluntary. The North Carolina Bar Association (the voluntary trade group) and individual attorneys can contribute to broader wellness programs without raising the same issues.
Q: What about programs that benefit the attorney but not family, such as substance abuse treatment or stress counseling?
A: Those programs would fit the AG's framework. They benefit only the attorney and connect to professional competence (an attorney with untreated substance abuse is at risk of misconduct). The AG specifically blessed counseling tied to competence or professional conduct issues.
Q: Could the State Bar require attorneys with documented competence problems to undergo counseling as a condition of continued practice?
A: That is a separate disciplinary question not addressed in this opinion. The State Bar's discipline authority lets it impose conditions on continued practice, including treatment, when warranted. That mechanism uses individualized discipline, not the dues-funding mechanism this opinion analyzes.
Q: Did the State Bar actually modify BarCARES after this opinion?
A: The opinion did not address what happened next. In practice, BarCARES continued to evolve, and the program today operates under arrangements that have addressed the concerns this opinion raised. Anyone interested in the current structure should consult current State Bar materials, not this 2001 opinion.
Citations from the opinion
- N.C. Gen. Stat. § 84-16
- N.C. Gen. Stat. § 84-18.1
- N.C. Gen. Stat. § 84-23
- N.C. Gen. Stat. § 84-23.1
- N.C. Gen. Stat. § 84-34
- State v. Ballance, 229 N.C. 764, 770, 51 S.E.2d 731, 735 (1949)
- Duggins v. North Carolina Bd. of Certified Public Accountant Examiners, 294 N.C. 120, 125, 240 S.E.2d 406, 410 (1978)
- North Carolina State Bar v. Frazier, 269 N.C. 625, 630, 153 S.E.2d 367, 370, 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), aff'd, 348 N.C. 655, 501 S.E.2d 907 (1998)
- Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990)
- Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456, 223 S.E.2d 323 (1976)
- Great American Insurance Co. v. Johnson, 257 N.C. 467, 126 S.E.2d 92 (1962)
Source
Original opinion text
Reply to: Norma S. Harrell, Special Deputy
(919) 716-6900 Fax: (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 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 (1990). 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 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