BISMARCK – A lawsuit claiming the State Bar Association of North Dakota violated the rights of a Bismarck attorney when it used member dues for political purposes without his knowledge or permission was put on hold Wednesday, with the bar agreeing that changes are needed in how it uses the mandatory dues.
The Phoenix-based Goldwater Institute filed the lawsuit in February, claiming the bar gave $50,000 to Keeping Kids First, a political committee that opposed Measure 6 on the November ballot, without informing its lawyer members.
The measure, which voters rejected, aimed to provide equal parenting rights in child custody cases.
Bismarck attorney Arnold Fleck publicly advocated for the measure and contributed $1,000 to the committee that backed it.
The lawsuit filed on behalf of Fleck contends the bar violated his First Amendment rights when it used his mandatory member dues to support a political view he opposed. Attorneys must belong to the bar to practice law in North Dakota.
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The Goldwater Institute sought a preliminary injunction to block the bar from spending member dues on politics, but a hearing on that motion in U.S. District Court in Bismarck was canceled Wednesday after a settlement conference.
Goldwater Institute attorney Jared Blanchard said the bar has agreed to bring a proposal by late August with procedures that will comply with U.S. Supreme Court requirements that protect the right of member attorneys to not have their mandatory dues spent on political speech they disagree with.
If the institute agrees with the new procedures, the lawsuit will be dismissed, he said. If not, the case seeks to make the bar a voluntary association.
"We're optimistic because the bar has agreed that it does need to change its procedures," he said.
The bar also agreed to put Fleck's dues into an escrow account so they aren't used for any unconstitutional purposes and to let members know how their dues are being spent to allow them to object to if they have issues, Blanchard said.
State Bar Executive Director Tony Weiler issued a statement saying it wouldn't be appropriate to discuss the details of a settlement that's still being negotiated, adding, "Doing so diminishes the likelihood of settlement."
In response to a news release from the Goldwater Institute, he said, "SBAND is looking at its current policies and procedures regarding use of lawyer fees and agrees that some changes are required."
However, Weiler said it wasn't accurate to say that the bar agreed to everything the institute asked for in its injunction motion.
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"In addition, SBAND disagrees with the claims made by Mr. Fleck's attorneys as to what the law requires in relation to how and when bar dues can be used," he said. "Further, the court ordered that the negotiations be confidential, and SBAND intends to comply with the court order.
In its answer to the lawsuit, the bar says its board of governors voted unanimously to contribute up to $50,000 to the Keeping Kids First committee, but that ultimately only $46,525.85 was contributed, with the difference being refunded to the bar.
