By dmagazine |
Texas’ Battle of the Bars
Lawyers are used to slugging it out in court on behalf of their clients, but the latest Texas case being closely watched by legal observers has to do with the future of the bar itself. In March, three Texas lawyers filed a federal lawsuit in the U.S. District Court for the Western District of Texas claiming that the State Bar of Texas’ system of requiring compulsory dues from lawyers licensed to practice in the state violates the First Amendment. The plaintiffs also contend that in addition to what they describe as a “coerced association,” the State Bar also goes beyond its core function of regulating the practice of law by engaging in activities “that are inherently political or ideological,” such as initiatives promoting diversity or equal access to justice.
The lawsuit is one of several lawsuits pending nationally that seek to challenge so-called “mandatory” bar associations, also known as “unified” or “integrated” bars. Similar litigation is pending in Oregon, North Dakota, Oklahoma, and Wisconsin; so far, results have been mixed. In Oregon, U.S. Magistrate Judge Jolie Russo recommended dismissal of the suit in April, finding the use of compulsory membership dues to fund speech related to regulating the legal profession and improving the quality of legal services to be constitutional. But it’s a different story in the North Dakota case, Fleck v. Wetch. After that state’s bar won before the U.S. 8th Circuit Court of Appeals in 2017, the U.S. Supreme Court overturned the decision in December 2018 and sent it back to the 8th Circuit for reconsideration, in light of its 2018 decision in Janus v. AFS CME. In that matter, the Court struck down state laws in California and elsewhere that required teachers and other public employees to pay fees to support a union, saying the requirement violated the First Amendment rights of employees. Justice Alito’s majority opinion in Janus, which called it a “bedrock principle” that “no person in the country may be compelled to subsidize speech by a third party that he or she does not wish to support,” emboldened those wishing to challenge mandatory bar membership.
At least 31 states maintain “unified” bars; with more than 100,000 members, the State Bar of Texas is the largest. But the Janus decision didn’t overrule the Supreme Court’s own precedent the last time it reviewed a challenge to mandatory bar membership, in 1998’s Keller v. State Bar of California. In that case, the Court upheld a bar association’s use of compulsory bar dues to fund activities, as long as they were germane to the goals of regulating the legal profession and improving the quality of legal services. However, the Keller decision also acknowledged that determining which activities related to these permissible goals and which might have an impermissible political or ideological coloration can be difficult—a distinction that the plaintiffs in the Texas case have seized upon.
“The state Constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend..”Laura Gibson Chair, State Bar of Texas Board of Directors
The suit was brought by three lawyers: Austin solo practitioner Tony McDonald (who serves as general consel of the nonprofit Empower Texans), retired Latham & Watkins partner Mark Pulliam, and Joshua Hammer, an attorney employed by nonprofit law firm First Liberty Institute in Plano.
The pleadings detail the plaintiffs’ chief complaints. First, they oppose the mandatory nature of Texas bar membership on First Amendment grounds, citing the Janus ruling as support. Second, the plaintiffs maintain that the Bar’s engagement in things like diversity and access to justice initiatives, as well as operating a legislative program that advocates for the passage of laws affecting the legal profession, is unconstitutional. Citing the Bar’s $65 “legal services fee” that helps fund legal aid programs as an example, the plaintiffs argue that even if such fees were permissible, the State Bar should allow members to “opt in” to support such programs instead of requiring them to go through an administrative process to opt out. The three Plaintiffs went for a first-round knockout, filing a motion for partial summary judgment in the case.
But the State Bar’s defense team at Vinson & Elkins, led by renowned First Amendment litigator Tom Leatherbury of the firm’s Dallas office, showed that it’s ready to throw some haymakers of its own. In its initial response to the lawsuit, the Bar not only denied the allegations made by the plaintiffs but also filed a motion to dismiss, pointing out that as a state-controlled entity, the Bar and individual members of its board of directors are protected by sovereign immunity principles from claims like this. The Bar’s legal team argued that under the 1990 Keller case and other Supreme Court precedent, both mandatory membership in and financial support for the Bar are constitutional in that they further the state’s interest in regulating the profession and improving the quality and availability of legal services. Among other examples, the Bar pointed to its work as a clearinghouse for legal information and resources during natural disasters like Hurricane Harvey. It also highlighted its sponsorship of continuing legal education programs and its administration of the Texas Lawyers’ Assistance Program (which assists lawyers and judges with mental health or addiction issues).
Responding to the plaintiffs’ concern about “legislative activities,” defense counsel stated that the budget for such activities was just $173,238—about 0.3 percent of the Bar’s $50.4 million total budget—and that the Bar’s own strict rules prohibit it from taking a position on a legislative proposal unless it conformed to a lengthy list of criteria, following the guidelines set out in Keller. As for the plaintiffs’ criticism of the $65 legal services fee, the defense lawyers explain that the Bar neither receives or controls those monies. Instead, the funds are distributed by the Texas Supreme Court to the State Comptroller, who allocates half to fund civil legal services for the indigent and half to the state’s Fair Defense Account for indigent criminal defense programs. Indeed, the State Bar’s defense counsel seem to be living up to State Bar Executive Director Trey Apffel’s promise that the case would be vigorously defended. “As we have explained in our court filings, we believe the State Bar is fulfilling all of its statutory and constitutional obligations,” Apffel said. “The plaintiffs’ efforts to change decades of law is without merit.”
Buttressing the Bar’s summary judgment filings, as it, too, seeks a knockout punch, the defense included exhibits detailing the Bar’s service to the public as well as affidavits from in-house counsel at companies like United Airlines, which laud the Bar’s efforts to promote diversity and to support legal services for the indigent.
Despite all of the legal firepower brought to bear on behalf of the State Bar, however, its three challengers recently gained an unlikely ally of their own. On April 26, Texas Attorney General Ken Paxton filed an amicus brief in the case—siding with the plaintiffs. The brief argues that there is no justification for the Bar’s use of mandatory bar dues to fund “political and ideological speech,” and urges the court to grant the plaintiffs’ motion for partial summary judgment. No other state’s attorney general has taken such a step.
Laura Gibson, current chair of the State Bar’s Board of Directors, expressed her disappointment, saying, “In our view, the state Constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend.”
Critics of Paxton suggest political motivations, pointing to the hundreds of thousands of dollars contributed by Empower Texans’ PAC to the political campaigns of both Paxton and his wife, State Senator Angela Paxton. Plaintiff Hammer is employed with First Liberty Institute, which has had several top lawyers land senior positions in the AG’s office, including Jeff Mateer, Paxton’s first assistant.
Although the lawsuit’s outcome is up in the air, the stakes are undoubtedly high, even existential for the State Bar. A defeat could result in a splintering of the bar into two entities—a mandatory body that handles attorney discipline and a purely voluntary one that handles educational programming and similar functions. It could even lead to the Legislature stepping in to regulate the legal profession. As the State Bar marks its 80th anniversary this year, the future is anything but certain.