On Petition to Amend Rule 1 of the Rules Governing the Bar

431 A.2d 521, 1981 D.C. App. LEXIS 352

Opinions

ORDER

PER CURIAM.

On consideration of the petition of the District of Columbia Bar to amend Rule I of the Rules of this Court Governing the Bar of the District of Columbia, the oral and written responses thereto, and of the order of this Court dated January 19,1981, which, inter alia, granted, pending further order of the Court, the Bar’s motion for an order respecting the conduct of activities pending a ruling by the Court on the aforesaid petition, it is this 5th day of May, 1981,

ORDERED that the aforesaid petition of the Bar to amend Rule I is hereby denied, and it is

FURTHER ORDERED that the aforesaid order of January 19, 1981, insofar as it granted the District of Columbia Bar’s motion for an order respecting the conduct of the activities pending a ruling by the Court on the aforesaid petition, is hereby vacated effective July 1,1981. See Rule VII, § 4 of the above-mentioned rules.

Separate statements follow.

HARRIS, Associate Judge, with whom KELLY,

Footnotes

•

* KERN and NEBEKER, Associate Judges, concur:

On December 18, 1980, the results of two referenda which had been submitted to the active members of the District of Columbia Bar were announced. The one designated as Referendum No. 2 was phrased as follows:

Mandatory dues and assessments of the District of Columbia Bar shall be used only for the following purposes: admission of attorneys; their continued registration; discipline of attorneys; and, client security fund. Any other activities shall be funded by other means, including but not necessarily limited to voluntary contributions. If in the judgment of the Board of Governors, implementation of the foregoing requires a rules change, the Board is directed to petition the District of Columbia Court of Appeals to obtain such change.

That referendum was passed by a vote of 6,721 to 5,189.¹

On December 24, 1980, the Board of Governors of the Bar filed a two-page petition, based upon the referendum, which proposed that a new § 3 be added to Rule I of our Rules Governing the Bar. That new section essentially would duplicate the language of the critical portion of Referendum No. 2. We stayed the effectiveness of the referendum pending our receipt and consideration of written and oral comments on the issues presented.

Section 4 of Rule VII provides in pertinent part that:

The result of a referendum as determined by a majority of the votes cast, . .. shall control the action of the Bar, the Board of Governors, the officers and committees.

Today, we terminate the existing stay effective as of July 1, 1981, and permit the implementation of Referendum No. 2 on that date. We conclude that there is no need to amend our Rules, and hence the Board of Governors’ petition is denied. We also conclude that the implementation of Referendum No. 2 is subject to the continued effectiveness of § 3 of Rule IV, which authorizes the Board of Governors to perform certain functions essential to the day-to-day operations of the Bar as an organization.

I

There is no need for a detailed analysis of the historical steps which have led us to the present point. It should be observed, however, that for many years before the enactment of'the Court Reorganization Act of 1970, a serious problem existed as to lawyer discipline in the District of Columbia. The only effective disciplinary mechanism lay within the United States District Court for the District of Columbia, but its disciplinary powers could not effectively reach a significant percentage of the total number of attorneys engaged in the practice of law here. Many lawyers believed that it was desirable to have a unified or mandatory bar to bring all attorneys within the reach of ready professional discipline. Some opposed the creation of a unified bar.

In 1970, Congress determined that this court should assume the customary role performed elsewhere by state supreme courts. Thus, as part of the Court Reorganization Act, Congress provided in what is now D.C. Code 1973, § 11-2501:

(a) The District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.

(b) Members of the bar of the District of Columbia Court of Appeals shall be eligible to practice in the District of Columbia courts.

(c) Members of the bar of the United States District Court for the District of Columbia in good standing on April 1, 1972, shall be automatically enrolled as members of the bar of the District of Columbia Court of Appeals, and shall be subject to its disciplinary jurisdiction. (July 29, 1970, Pub.L. 91-358, § 111, title I, 84 Stat. 521.)

In turn, this court became persuaded of the desirability of a unified bar to implement the objectives of § ll-2501(a). On April 1, 1972, we adopted a set of Rules Governing the Bar. The preamble thereto stated:

The District of Columbia Court of Appeals in the exercise of its inherent powers over members of the legal profession does hereby create, as an official arm of the court, an association of members of the Bar of the District of Columbia to be known as the District of Columbia Bar, and pursuant to its statutory authority governing admissions to the Bar promulgates the following rules for the government of the Bar and the individual members thereof[.]

Thus the District of Columbia Bar came into existence.² I believe that all of us who lived through the relevant years recognize that the overriding reason for creating a unified bar was bringing all of the jurisdiction’s lawyers under one disciplinary system. To make the basic purposes of the unified bar visually apparent, attached hereto as Appendix A is a copy of the original organizational chart prepared by the first Executive Director of the District of Columbia Bar. It reflects the intended structure of the Bar, progressing from this court to the Bar’s officers, a Board of Governors, The Disciplinary Board (since renamed the Board on Professional Responsibility) with its subordinate entities, a Committee on Admissions, a Committee [on] Unauthorized Practice, and a Client Security Trust Fund. The smallest box on the chart refers to “Other Committees — As appointed by the Board of Governors.”

While the four principal committees — the then-Disciplinary Board, the Committee on Admissions, the Committee on Unauthorized Practice, and the Client Security Trust Fund — function as direct arms of the court (although funded by dues), it was intended that the Bar otherwise basically should be autonomous, subject to a recognition of the fact that it, having been created by this court, is an organ of government. In setting the composition of the Board of Governors in § 1 of Rule IV, we provided:

The affairs of the Bar shall be managed and directed by a Board of Governors consisting of the officers of the Bar and the immediate past-president of the Bar, who shall be ex officio members of the Board, and fifteen members elected by members of the Bar in the manner prescribed by the By-laws.

An organization such as the District of Columbia Bar has certain inherent roles which it must fulfill in order to permit the organization to operate effectively. To remove any doubt as to them, we provided for the performance of a number of specified functions in § 3 of Rule IV:

The Board of Governors shall have general charge of the affairs and activities of the Bar. It shall have authority to fix the time and place of the annual meeting of members of the Bar; to make appropriations and authorize disbursements from the funds of the District of Columbia Bar in payment of the necessary expenses of the Bar; to engage and define the duties of employees and fix their compensation; to receive, consider and take action on reports and recommendations submitted by committees, and the assembly of members of the Bar at any annual or special meeting; to arrange for publication of an official Bar bulletin or journal; to conduct investigations of matters affecting the Bar; to fill vacancies, however arising, in the membership of the Board of Governors, or in any office, subject to the limitations of Rule III, section 3, and in such case the person appointed to fill such vacancy shall hold office until the completion of the next regular election; and to adopt By-laws and regulations, not inconsistent with these rules, for the orderly administration of the Bar’s affairs and activities.

It is doubtful that many of us anticipated that the unified bar would grow to a membership of some 34,000 in just eight years’. Be that as it may, with a Board of Governors comprised of 20 voting members, obviously a high degree of power over Bar affairs and funds is vested in a small number of elected officials of the Bar. To guard against policies adopted by the Board of Governors which might prove unacceptable to a majority of the Bar’s overall membership, we established referendum procedures in Rule VII. They provide:

Section 1 — GOVERNORS MAY INITIATE.

The Board of Governors may at any time, by the affirmative vote of two-thirds of its membership, refer to the active members of the Bar for determination by mail ballot, any question of Bar policy.

Section 2 — ASSEMBLY MAY INITIATE.

The Board of Governors shall, in like manner, submit for determination by the active members of the Bar, any question of Bar policy, including proposed changes in the rules or By-laws of the Bar, whenever directed so to do by resolution adopted at any annual or special meeting of the Bar by the affirmative vote of not less than two hundred members; provided that no such resolution directing the Board of Governors to propose changes in the rules shall be effective unless adopted at two consecutive meetings of the assembly.

Section 3 — MEMBERS MAY INITIATE BY PETITION.

The Board of Governors shall, in like manner, submit for determination by the members of the Bar, any question of Bar policy, including proposals for changes in the rules or By-laws, whenever directed so to do by a petition signed by not less than three hundred active members of the Bar. Section 4 — PROCEDURE.

Ballots for use in any such referendum shall be prepared, distributed, returned and counted in accordance with regulations prescribed by the Board of Governors. The result of a referendum, as determined by a majority of the votes cast, when duly ascertained shall be published by the Board of Governors in the official Bar bulletin, and shall control the action of the Bar, the Board of Governors, the officers and committees.

II

When the unified bar was created, the District of Columbia had many voluntary bar associations, of which by far the largest was the long-established Bar Association of the District of Columbia. For many years it had been providing a lawyer referral service to aid those in need of counsel; for many years it and the other voluntary bar associations (including a variety of specialized bar associations such as the Federal Communications Bar Association) had conducted continuing legal education programs. It was not our intention that the unified bar should stifle or compete with voluntary bar associations. Thus, when we adopted a broad set of purposes for the District of Columbia Bar, we specifically directed among other things that the unified bar should encourage the activities of those associations. Our broad statement of the Bar’s purposes as set forth in § 2 of Rule I reads as follows:

The purposes of the Bar shall be to aid the court in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence in public service, and high standards of conduct; to safeguard the proper professional interest of the members of the Bar; to encourage the formation and activities of volunteer bar associations; provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public, and to publish information relating thereto; to carry on a continuing program of legal research and education in the technical fields of substantive law, practice and procedure, and make reports and recommendations thereon; to the end that the public responsibility of the legal profession may be more effectively discharged.

The Bar grew, both in size and in the scope of its activities. It now has annual dues income of nearly $2 million, a total annual budget of approximately $2.4 million, and approximately 60 employees. A series of Boards of Governors undertook a wide variety of activities, some of which unquestionably had not been anticipated by the court when the mandatory bar was created. Many lawyers approved of those activities; many lawyers disapproved of some of them; many lawyers paid little attention to them. This court as an institution neither approved nor disapproved of the Bar’s various activities.

Then, on February 15, 1980, an event occurred which planted the seed for the dispute now before us. On that date, the Board of Governors formally petitioned the court for an increase in the authorized dues ceiling from the then-existing $50 per year “to at least $150” per year.³ That request proved to be a call to arms for a substantial segment of the Bar which had disapproved of a variety of the Bar’s activities and expenditures. Illustratively, $58,000 per year from dues is being expended on the Citizens’ Advisory Committee.⁴ The District Lawyer, a bimonthly magazine, is published by the Bar at a net cost — made up from dues — of over $100,000 per year.⁵ Extensive continuing legal education programs and lawyer referral and information services have been funded in significant part by mandatory dues. Out of dissatisfaction with various actions being taken by the Board of Governors, and out of concern as to what the Board of Governors might do with potential annual dues revenues in excess of $5 million, came two referenda which duly were proposed by members of the Bar.

III

The first referendum dealt with the requested dues increase it asked the membership to vote “yes” or “no” on the following proposal:

The Board of Governors is directed to amend its petition to the District of Columbia Court of Appeals to seek an increase in the dues ceiling for the D.C. Bar to not more than $75, instead of “at least $150,” as contained in the petition of February 15, 1980 to the Court.

Referendum No. 2, quoted on page 522, supra, sought a major change in the direction of the Bar’s activities. It asked the membership to vote on limiting the use of mandatory dues to attorney admission, registration, and discipline, and to the Client Security Trust Fund. It proposed that other activities be funded by other means, including voluntary contributions.

The issues were aired fully. The October-November 1980 issue of the Bar Report (the Bar’s other bimonthly publication, which alternates with the District Lawyer) devoted eight pages to expressions of opinion on each side of the referenda. A special membership meeting of the Bar was held on October 29, 1980, to discuss the referenda. Additionally, the subjects were discussed widely among individual members of the Bar.

The results of the referenda do not lend themselves to euphemistic characterization. Rightly or wrongly, wisely or unwisely, they constituted a repudiation of many decisions made by successive Boards of Governors through the years since the formation of the mandatory bar in 1972. On Referendum No. 1 (as to the dues ceiling limitation), there were 9,168 “yes” votes and 2,778 “no” votes. On Referendum No. 2 (as to the limitation on the use of mandatory dues), as noted, there were 6,721 “yes” votes and 5,189 “no” votes.

The Board of Governors’ subsequent perfunctory petition proposing that Rule I be amended concluded with the following paragraph:

This petition raises fundamental issues as to the nature and future of this unified Bar, the resolution of which will necessarily influence, among other things, the course of the Bar’s now-commencing budget, dues-setting and nominations processes for the fiscal year commencing July 1, 1981. Accordingly, pursuant to Rule XIII, Section 1, of the Rules Governing the Bar, we suggest that this Court schedule an early hearing as an aid to the prompt consideration and disposition of the petition.

We did stay the effectiveness of Referendum No. 2 pending further order. We invited comments, and received more than 150 written submissions. We also conducted two days of hearing in which we listened to scores of oral presentations. As would be expected, the opponents of Referendum No. 2 urged us not to amend Rule I. The proponents of Referendum No. 2 now take the position that the referendum is self-executing, and that no rule change is needed. Thus, no one urges that we should amend Rule I.⁶

IV

The principal differences between the various parties are readily apparent. Their resolution, however, revolves around the nature of the court’s role in this controversy. We are grateful to all who took the time to advise us of their views; without exception each such person expressed sincerely felt beliefs. Many devoted their attention to contending that the Bar’s continuing legal education programs and its lawyer referral and information service are desirable. No one has disagreed with that proposition. Rather, the question is whether the membership permissibly may determine by majority vote that such activities not be supported by dues which must be paid by every lawyer who is admitted to practice in this jurisdiction.

The principal document filed with us in opposition to Referendum No. 2 was signed by a former president of the Bar. It also bore the names of 87 other attorneys, including several other past presidents of the Bar and some past and present members of the Board of Governors.⁷ In one paragraph of that pleading, a recognition of the problem was coupled with a plea for the rejection of the referendum:

Probably the Bar has made some errors in judgment, and the appropriateness of some isolated statements and activities is undoubtedly questionable. For any such errors, some of the participants in this Statement share responsibility. Nonetheless, we are convinced that it would be a serious mistake — indeed, a tragedy — if this Court were to change Rule I in accordance with the Referendum result, to thus turn the clock back, and thereby to emasculate what has evolved into one of the most respected unified bars in the country.

In another written submission, a present member of the Board of Governors explained his view of the passage of Referendum No. 2 in the following manner:

Many supporters of Referendum Number 2 are laboring under an outdated view of the Unified Bar and its structure, having misread and misinterpreted its evolution over time. In the formative years of the Bar, the Board of Governors took a number of actions which, in my view, a compulsory organization should not have taken. Unfortunately, the Bar still has not erased from the minds of its members the memory of those actions, including the decisions of the Board of Governors to take positions on legislative proposals and to file amicus curiae briefs, purporting to speak for the entire Bar. Indeed, I believe many members of the Bar voted for Referendum Number 2 to limit permissible Bar activities precisely because of the misconception that the Board of Governors still engages in such activities.

Similarly, in the early years of the Bar, compulsory Bar dues were spent directly to fund some pro bono or public interest activities of various kinds. Many members of the Bar think that their dues monies still are used to support such activities today, another misconception.[⁸] Some Bar members also believe that the Board of Governors is a monolithic group of public interest spendthrifts with a fixed philosophical bent. That is not so, if it ever was. Indeed, this entire perspective on the Bar’s philosophy, policies and activities is not only outdated and in error; it unfairly disregards, the honest, successful attempts that have been made to alleviate the misjudgments of the Bar’s infant years.

It was mentioned earlier that the critical question is the nature of our role. We have no doubt but that had the referen-da been defeated, and had the hypothetical losers sought to have us override the refer-enda and curtail the use of dues revenues, we would be hearing vigorous arguments from the Board of Governors’ side to the effect that the results of the referenda must be controlling. After all, § 4 of Rule VII is not ambiguous. It provides in pertinent part that: “The results of a referendum . . . shall control the action of the Bar, the Board of Governors, the officers and the committees.” Had the referenda been defeated, such an argument on behalf of the opponents of the referenda would have been undeniably persuasive. Here, where the proponents of the referenda prevailed, the same argument may not be deemed any less controlling.

This is not to say that the referendum power is unlimited. We all should be able to agree that a referendum may not impinge upon the constitutional rights of the members of our Bar, nor may a referendum effect a per se amendment of our Rules Governing the Bar. Here, no one has suggested that the referenda conflict with attorneys’ constitutional rights. To the contrary, many have argued that the Board of Governors’ use of mandatory dues for certain purposes henceforth precluded by Referendum No. 2 has violated their rights.⁹

We are left with the task of determining whether Referendum No. 2 impermissibly effects an amendment of our Rules. In making this judgment, two of our Rules must be considered. The first is § 2 of Rule I, which sets forth the general “Purposes” of the Bar. Our colleague Judge MACK, in her separate opinion (post), takes the position that Referendum No. 2 impermissibly contravenes § 2 of Rule I and hence that we should prevent its implementation. We have quoted from two of the pleadings filed by opponents of Referendum No. 2; we quote now from the submission made by one member of the Bar (who, incidentally, is a former state supreme court judge):

It is clear that the general purposes of the Bar as stated in the rules of the Court of Appeals creating the Bar are expansive and inclusive. This is not only good draftsmanship but is common in the drafting of similar documents of both government and private organizations. This certainly does not imply that every conceivable activity which would not be ultra vires under the statement of purposes must be undertaken by the organization. If that were so, there would scarcely be a solvent public or private corporation or agency in the country. Indeed, the officers and Board of Governors of the D.C. Bar have themselves demonstrated that they do not thus construe the statement of purposes. One of the purposes of the Bar is stated to be “to encourage the formation and activities of volunteer bar associations.” If the compulsory bar has done anything to encourage the voluntary bar it has not been apparent to one, like myself, who is merely a member of both.

Furthermore, a number of the purposes are obviously of such breadth that they cannot be fully undertaken with any reasonable expenditure of funds and effort. •Among the purposes is to provide a forum for the discussion of subjects pertaining to the practice of law. For this to be construed as mandatory and to extend to the limits of its terms would require the Bar to maintain the equivalent of a full university law school course. This is obviously not the intention of that provision. A similar analysis is applicable to nearly every part of the statement of purposes.

We agree that there is nothing mandatory in § 2 of Rule I. That is, it does not obligate the Bar to perform any of the functions which have proven to be so controversial. It thus presents no impediment to the implementation of Referendum No. 2.

We reach a somewhat different conclusion with respect to § 3 of Rule IV, which is quoted on pp. 523-524, supra. If Referendum No. 2 were to be construed literally, it might be viewed as preventing the performance of some of the basic functions of the Bar. For example, the propriety of holding an annual meeting could be cast in doubt and communications with the membership might cease — including even preventing the holding of a future referendum. When we set forth the “Functions” of the Board of Governors in § 3 of Rule IV, we authorized by rule the taking of specific steps necessary to permit the day-to-day functioning of the organization. Hence, while Referendum No. 2 is entitled to be implemented, that result is to occur only to the extent that it does not deprive the Board of Governors of its ability to perform the operational functions specifically set forth in § 3 of Rule IV.

V

It is difficult to avoid the feeling that those of our colleagues who would preclude the implementation of Referendum No. 2 essentially are reflecting how they would have preferred the referendum to have been resolved. We perceive it as beyond question that the democratic rights which we have established for our Bar’s membership by adopting referendum procedures would be scant rights indeed if we were to say that the result of a referendum “shall control the action of the Bar” (Rule VII, § 4) only when a majority of the members of this court agrees with the result. Moreover, we neither can nor should function as a continuing arbiter over internal disputes as to day-to-day Bar policies. The heavy demands upon our time to meet our adjudicatory responsibilities already make extremely arduous the achievement of our dual goals of deciding appeals as correctly as we can, as promptly as we can.

We choose not to deal with various specific aspects of Judge FERREN’s separate statement. As to its obvious social and philosophical overtones, we note that The Washington Post published an editorial on the subject on April 4, 1981. To convey that publication’s views as to the problem before us, the editorial is reproduced as Appendix B hereto. We quote at this point its last two paragraphs:

But the fight over using the D.C. bar’s dues for public service is essentially a battle to institutionalize the idea of community service and make it a requirement for all lawyers working in Washington. The D.C. bar is not a voluntary organization; a lawyer must be a member to practice law here. To compel any person to do the bar’s bidding on a matter of social policy, not professional ethics, is wrong in principle.

It is important to note that the vote on dues in no way represented a limit on what activities some members may want to support voluntarily. Some lawyers and law firms will want to help the bar maintain some, if not all, of the current activities. It is also likely that, as individual lawyers and law firms direct their money to particular activities, the bar will become a better reflection of the will of its members. But even if the bar’s members choose to do nothing, the Appeals Court should not require a lawyer to do anything other than not cheat his clients and abide by the law in order to qualify to practice in the city’s courts.

We do, however, refer to a small portion of Judge FERREN’s statement as the basis for concluding this opinion. On p. 535, post, he notes examples of how the nation’s largest voluntary bar association — the American Bar Association — has funded certain projects to assist in supplying legal services.¹⁰ He then states:

Referendum No. 2 puts the Bar’s programs in jeopardy. Do the lawyers of the community have authority to cut off dues support for them?

In considering that question, it must be understood that the referendum in no sense precludes such programs as continuing legal education or a lawyer referral and information service; it simply establishes that they are not to be funded by mandatory dues.¹¹ As a practical matter, the subject programs were not put in effect by direction of this court; they were created by the Bar solely through the wishes of its successive Boards of Governors. Now, through the referendum process, the membership permissibly has overridden the Board as to the future utilization of mandatory dues revenues. If the question were phrased: “Do the lawyers of the community have authority to alter Bar policy consistent with the relevant statute and our Rules?”, the answer could only be “yes.”

The implementation of Referendum No. 2 will not adversely affect the proper functioning of the Bar. To the contrary, we are hopeful that it will go a long way towards healing the counterproductive divisiveness within the Bar • of which we have been aware. Moreover, the President-elect of the Bar (who also is and has been a member of the Board of Governors, although the manner in which the Bar’s nominating machinery has been operated — itself a source of considerable dissatisfaction — made it necessary for him to become a candidate by the petition process) has made clear his belief that the Bar not only can but will function well within the limitations of Referendum No. 2.

Additionally, Referendum No. 2 is not the end of the decisional process within the Bar; it is but another prologue. Lawyers who have been on each side of the Referendum No. 2 issue should cooperate meaningfully to resolve future problems as they arise. Inevitably, of course, they will arise. Our disposition of the present controversy leaves essentially unresolved, for example, the problem of the District Lawyer. Obviously many like it in its present magazine format; equally obviously many others consider it a needless extravagance and the purveyor of a particular type of Bar philosophy. Section 3 of our Rule IV, against which the implementation of Referendum No. 2 must be measured, authorizes the Board of Governors in part “to arrange for publication of an official Bar bulletin or journal.” We do not view it as our role now to determine whether the District Lawyer falls within that definition. If a satisfactory middle ground cannot be found as to a form of publication which is acceptable to a majority of the Bar’s membership, perhaps further resort to the referendum process will become necessary — on the initiative either of the Board of Governors or of the requisite number of non-Board members. The same may be true of other issues.

Finally, we are unanimous in not sanctioning the implementation of Referendum No. 2 until July 1, 1981, the beginning of the Bar’s next fiscal year. This time period should be more than adequate for a smooth transition to the modified course charted by Referendum No. 2. All agree that this community possesses an enormous pool of skilled and dedicated attorneys. As we proceed from this milestone, we urge each of them to strive for conciliation, cooperation, and effective performance within the framework of a cohesive and properly channeled unified bar.

APPENDIX A

APPENDIX B

THE WASHINGTON POST

[April 4, 1981, p. A 12]

LAWYER’S ROLE

THE DEBATE has resumed over the proper role of the D.C. Bar. On one side the profession to involve itself in city life, and that part of the bar’s dues should pro-are lawyers who say the bar should simply serve its stated function of registering and disciplining lawyers who practice in the District. On the other side are lawyers who say that the bar is required by the ideals of vide social services, such as lawyer referral and studies of the court system.

In December, the bar’s membership voted to confine the use of its dues to discipline and registration only. But now the D.C. Court of Appeals, which oversees the bar, is set to make a final decision on the question.

At issue here is the role of lawyers in society, not just the role of the bar. Part of the argument in favor of using dues for social services is that good lawyers as individuals should contribute to the betterment of the city, in the tradition of some socially concerned lawyers who offer their services pro bono to the poor. This tradition is a fine one. Some bar associations with voluntary membership have even decided to expand on those individual acts by making service to the community a formal part of their mission.

But the fight over using the D.C. bar’s dues for public service is essentially a battle to institutionalize the idea of community service and make it a requirement for all lawyers working in Washington. The D.C. bar is not a voluntary organization; a lawyer must be a member to practice law here. To compel any person to do the bar’s bidding on a matter of social policy, not professional ethics, is wrong in principle.

It is important to note that the vote on dues in no way represented a limit on what activities some members may want to support voluntarily. Some lawyers and law firms will want to help the bar maintain some, if not all, of the current activities. It is also likely that, as individual lawyers and law firms direct their money to particular activities, the bar will become a better reflection of the will of its members. But even if the bar’s members choose to do nothing, the Appeals Court should not require a lawyer to do anything other than not cheat his clients and abide by the law in order to qualify to practice in the city’s courts.

Separate Statement of

KERN, Associate Judge:

The essence of the various arguments presented in this proceeding to this court to overturn the referendum is that existing Bar functions, principally a Lawyers Referral Service and Continuing Legal Education, can no longer be effectively administered in this jurisdiction unless they continue to be financed by the annual compulsory dues paid by members of the D.C. Bar. I reject this notion. Other distinguished bars, e. g., the Bar of the City of New York (long regarded as a model bar group), administer these activities on a voluntary basis, not on a government-compelled basis. I cannot believe the membership of the Bar of this city lacks the will and the way that its counterpart in New York possesses.

Underlying all the separate statements on this court that oppose the referendum going into effect as provided by our Rules is the notion that unless the State (this court) compels it, the obligations of the profession will not be met. I reject this pessimistic notion, which surely demeans our Bar. There have been for decades in this city and there will be in the future an effective Lawyer Referral Service and Continuing Legal Education. Any view to the contrary is based on ignorance of the past and despair for the future.

Some members of the community appear to hold the notion that those in need of legal representation or those who seek improvements in the system of justice are being abandoned as a result of the bar referendum. They should recognize that the funds accumulated from mandatory Bar dues can neither hire lawyers for the needy nor create ideas for law reform. Instead, reliance must be had, as always, on lawyers — and especially law firms because of their personnel resources. They, not dues money, can best provide legal representation by continuing to make themselves available for service on the Lawyer Referral List and provide direction to legal reform by their participation in it.

The incoming President of the Bar and other prominent Bar members have accepted the referendum and called for a beginning based upon the concept of voluntary service that has been traditional with the legal profession. I am confident that all lawyers will now put aside the divisiveness that has wracked the Bar in recent years and come together: to plan and work for the common ideals of serving the profession and the community. As the inscription on the Western Plaza in front of City Hall reminds us: Washington was planned as a city of ideals.

Judge KELLY concurs in this opinion except for Part V thereof.

1

. There are three categories of membership in our unified (or mandatory) bar: active, inactive, and judicial. The total membership is approximately 34,000. Of those, somewhat over 26,000 are active members. A significant, but not readily discernible, percentage of the active members have their principal locations in other than the metropolitan Washington, D.C., area. Only active members may vote on a referendum.

2

. The first paragraph of § i of Rule I provides:

All persons admitted to practice law in the District of Columbia are hereby organized as an association to be known as the “District of Columbia Bar” subject to the provisions of the rules hereinafter set forth.

3

. Later, pending the results of Referendum No. 1 (discussed below), we authorized an increase in the dues ceiling to $75 per year. Annual dues now are $65 for active members of the Bar.

4

. Judge FERREN, who believes that Referendum No. 2 should not be permitted to take effect, characterizes the role of the Citizens’ Advisory Committee as “to help assure lawyer accountability by putting hard questions from the client perspective.” (Statement by FER-REN, J., post, at 31.) In its first publication (Winter 1981 issue), the CAC describes itself as follows:

WHAT THE CAC IS

The District of Columbia Bar’s Citizens’ Advisory Committee is an advisory group of non-lawyers which formally advises the D.C. Bar and its Board of Governors, the legal profession, and the Courts about ways they can better serve the public. After eight years of operations, the CAC is still the only established committee of this kind in the country.

Founded in 1973, to give non-lawyers a voice in matters relating to the administration of justice, the CAC has the authority to undertake investigations and other initiatives; and to issue reports, recommendations and public statements.

Thirty-three non-lawyers make up the Advisory Committee, which has a staff of two persons and a Fiscal Year 1981 budget of $58,000 provided by the D.C. Bar. Its offices are on the eighth floor, 1426 H Street, N.W., Washington, D.C. 20005; (638-1500).

The use of mandatory dues for activities such as those undertaken by the CAC raises serious First Amendment questions. See, e. g., Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The implementation of Referendum No. 2, however, will moot this problem.

5

. For the fiscal year ended June 30, 1980, the expense of the six issues of the District Lawyer was $206,589. The Bar’s total advertising income for the year was $102,384.

6

. However, as a fallback position, proponents of Referendum No. 2 have stated that if we conclude that a rule change is necessary, we should adopt the proposed rule which mirrors the referendum.

7

. The Board of Governors quite properly took no official position as to the possible amendment of Rule I.

8

. We note that if that statement is correct, the concern expressed by the opponents of Referendum No. 2 has been overstated. However, it appears to be inaccurate. For the fiscal year ended June 30, 1980, the Bar reflected the expenditure of $251,457 for “Public service activity.” On the income side, the only matching item which is apparent is $30,986 from the Lawyer Referral and Information Service. In his statement which follows (post, at 535-536), Judge FERREN states that the “coordinated programs of the Office of Public Service Activities require money — $385,000 in 1980-81, of which $360,000 or $11.22 per lawyer are budgeted from Bar dues.” (Footnote omitted.) We see no reason to doubt his figures.

9

. This is without regard to the due process rights of the proponents of Referendum No. 2 which might be violated if we were to refuse to follow our own rules as to the implementation of a properly conducted referendum.

10

. This very fact (with respect to which Judge FERREN is quite knowledgeable through his services as Chairman of the ABA’s consortium on Legal Services and the Public) is a further demonstration of the concept that meaningful voluntary efforts will be made to meet iegiti-mate needs for legal services, both by voluntary bar associations and by volunteers within the framework of a mandatory bar.

11

. The facts concerning continuing legal education are instructive. For the fiscal year ended June 30, 1980, the Bar’s continuing legal education expenses were $245,437; the income therefrom was $219,444. It is our understanding that a majority of the panelists used by the Bar in such programs has been paid in excess of $100 each. (I know of no voluntary bar associations which pay their participants; peer recognition and a desire to be of assistance to others have proven to provide sufficient incentives to permit voluntary bars’ continuing legal education programs to succeed.) Only a relatively slight increase in CLE revenues and/or a reduction in CLE expenses would make the programs self-sustaining, which is all that is required by Referendum No. 2.