SE Texas Record

Sunday, October 13, 2019

Texas Bar Board sued by Bar members, attorneys argue forced funding of ‘diversity’ initiatives, other programs, is unconstitutional

By David Yates | Mar 7, 2019

AUSTIN – Compelling Lone Star attorneys to pay dues to the State Bar of Texas in order to fund “diversity” initiatives and legislative programs violates their First Amendment rights, according to a recently filed lawsuit.

On March 6, three Texas attorneys filed suit against the State Bar Board of Directors, a lengthy list of individuals that includes Bar President Joe Longley.

The issue of the State Bar collecting mandatory dues from Texas attorneys has been an ongoing one.

In January, Longley submitted an opinion request to the Texas Attorney General’s Office, tasking the AG to determine if 76,000 “senior” lawyers around the state have the right to vote on the election of Texas Young Lawyers Association officials.

The opinion request also questioned the constitutionality of collecting mandatory dues from Bar members in light of two recent U.S. Supreme Court decisions, Janus v. AFSCME and Fleck v. Wetch.

In Janus, the high court returned First Amendment rights to public sector workers, essentially finding that millions of public servants no longer have to pay a government union as a condition of employment.

Under Janus, it violates the First Amendment to compel attorneys to financially support the Bar in order for them to engage in their chosen profession, according to the recently filed lawsuit.

The plaintiffs contend the Bar engages in numerous activities beyond its regulatory functions that are inherently political or ideological, such as:

- Engaging in numerous “diversity” initiatives based on attorneys’ race, gender, and sexual orientation;

- Promoting “access to justice” initiatives that seek to prevent the deportation of individuals who entered the U.S. without authorization through the southern border;

- Imposing a $65 “legal services fee” on certain attorneys in private practice to fund legal aid programs; and

- Operating a legislative program that drafts and advocates for the passage of legislation.

“There is no compelling interest that can justify coercing Texas attorneys to fund these activities as a condition of engaging in their profession,” the suit states. “If the Bar believes these political and ideological activities are worth pursuing, it can fund them through voluntary contributions or seek direct appropriations from the State’s general fund.”

The suit further argues that assuming the Bar can use “coerced” fees for limited regulatory purposes, its procedures for allowing members to opt-out of political and ideological activities are “woefully inadequate.”  

Currently, the State Bar has a Government Relations Department that oversees a “Legislative Program,” through which it drafts and advocates for the passage of legislation on wide-ranging matters, such as construction law, family law, LGBT law, poverty law, real estate, trusts, and probate.

The Bar is currently advocating for the passage of 20 proposed bills in these areas, including one that would amend the definition of marriage in the Texas Constitution, according to the suit.

The plaintiffs in the suit are Tony McDonald, Joshua Hammer and Mark Pulliam.

They assert that they are entitled to a declaratory judgment that forcing them to associate with and financially support the State Bar’s political and ideological activities violates the First and Fourteenth Amendments.

The State Bar sent the following statement to the Record: "The State Bar of Texas is confident it is fulfilling all statutory responsibilities as the administrative arm of the Texas Supreme Court consistent with the Court’s authority to regulate the legal profession. The pending legal action will be addressed accordingly."

They are represented by Cameron Norris, William Consovoy, Jeffrey Harris, Cameron Norris and Samuel Adkisson, attorneys for the Arlington law firm Consovoy McCarthy Park.

Filed in the Western District of Texas, case No. 1:19-cv-00219

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State Bar Texas Lawyer Referal & Information Service Texas Attorney General