Challenges to mandatory bar memberships and dues soon will be teed up in the U.S. Supreme Court in two cases asking the justices to extend the reach of their landmark 2018 First Amendment ruling that invalidated "fair share" union fees to include the legal arena.

Current and former officers of the State Bar Association of North Dakota have retained Goldstein & Russell partner Sarah Harrington, a former assistant to the solicitor general who has argued 21 Supreme Court cases. Harrington, in a new filing Monday at the high court, defended the state's "integrated bar" and urged the justices to keep a lower court ruling in place in the case Fleck v. Wetch.

"A bar association is not the exclusive representative of its membership in any context. A lawyer is always free to publicly take a position contrary to that of the state bar of which the lawyer is a member," Harrington told the justices. "Thus, compulsory membership places less of a burden on the lawyer's First Amendment rights."

Meanwhile, Foley & Lardner partner Roberta Howell is representing the Wisconsin bar in the bar-fees case Jarchow v. State Bar of Wisconsin. Her brief, which will ask the court to uphold the state's fee structure, is due next month.

Central to both disputes is the Supreme Court's 2018 decision in Janus v. AFSCME, a labor and employment case that overturned a decades-old ruling that said public-sector unions could require the payment of certain fees from nonmembers. The divided ruling was expected to fuel challenges to mandatory bar fees for attorneys.

The North Dakota case Fleck is on its second trip at the Supreme Court. North Dakota attorney Arnold Fletch is challenging compulsory membership as a violation of his First Amendment right of association and the dues structure as violating his right to "affirmatively consent" before contributing funds for non-chargeable activities.

The U.S. Court of Appeals for the Eighth Circuit first rejected his challenge in 2017. But the Supreme Court, following its union decision in 2018, sent the case back to the appellate court ruling for consideration in light if its decision in Janus. A panel of the Eighth Circuit in August unanimously reaffirmed its earlier decision. Fletch is represented in the high court by Timothy Sandefur of the Goldwater Institute in Phoenix.

Baker & Hostetler's offices in Washington Baker & Hostetler's offices in Washington, D.C. Photo: Diego M. Radzinschi/ALM

In the Wisconsin case, lawyers Adam Jarchow and Michael Dean are represented in the Supreme Court by Baker & Hostetler partner David Rivkin. A Seventh Circuit panel in December, affirming a trial court decision, disposed of their appeal in an order stating: "The district court, in its thorough and well-reasoned order, correctly held that the appellants' claims are foreclosed by Keller v. State Bar of California (1990)."

That same month, the two Wisconsin lawyers asked the Supreme Court to overrule its two precedents upholding integrated bars: Lathrop v. Donohue (1961) and Keller. Those two cases, they contend, are irreconcilable with the Janus union ruling. Integrated bars require lawyers who are licensed to practice law to maintain bar membership and pay annual dues.

"The deferential standard applied by Lathrop and Keller is unsupportable, but its persistence deprives the hundreds of thousands of attorneys who are compelled by state law to join and subsidize the speech of integrated bars of their First Amendment rights," Rivkin told the justices.

In the North Dakota case, Harrington's effort to keep the lower court ruling in place has support from the North Dakota Attorney General's Office.

North Dakota lawyers have an option to pay for only his or her annual license fee to practice law, James Nicolai of the attorney general's office told the high court.

"Each attorney, if he or she chooses, may also voluntarily support the state bar's political speech by writing a check or making payment for the slightly greater amount that includes non-germane expenses; an amount expressly disclosed on the annual statement and accompanying instructions," Nicolai wrote.

Nicolai and Harrington contend that Fleck waived many of his key arguments when he conceded that Keller and Lathrop control. He also ignored a line of decisions culminating in Janus that Keller remains good law, the lawyers argued.

Fleck has drawn amicus support from groups including the National Right to Work Legal Defense Foundation, the Pacific Legal Foundation and the Liberty Justice Center.