Texas Bar launches counterattack in legal fight to stop collection of mandatory dues

By David Yates | May 14, 2019

AUSTIN - The State Bar of Texas has launched an all-out offensive, firing a barrage of filings yesterday in hopes of killing a lawsuit brought by three attorneys who contend paying mandatory dues violates their First Amendment rights.

In March, the plaintiff attorneys sued the State Bar Board of Directors, a lengthy list of individuals that includes Bar President Joe Longley, who, in light of a U.S. Supreme Court ruling, made an opinion request to the AG’s Office earlier this year questioning the constitutionality of collecting mandatory dues from members.

In Janus v. AFSCME, 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, the plaintiff attorneys argue that it violates the First Amendment to compel attorneys to financially support the Bar in order for them to engage in their chosen profession.


Longley  

They further assert that the Bar engages in activities beyond its regulatory functions that are inherently political or ideological, such as funding diversity initiatives and operating a legislative program.

The lawsuit has even caught the attention of Attorney General Ken Paxton, who filed a brief in support of the plaintiffs last month, arguing that the Bar violates the First Amendment rights of members by compelling financial support for ideological and political activities without their affirmative consent.

Apparently however, the wrong entity has been targeted, as the State Bar is an arm of the government – and a mandatory bar is different than a public-sector labor union, according to the State Bar.

In its motion to dismiss, the Texas Bar argues the Texas Legislature imposed the fee in the State Bar Act and that the defendant board members are not responsible for the imposition or enforcement of the requirement that the plaintiffs pay the fee.

“The Bar does not receive or control legal services fees,” the motion states. “And as with membership fees, Defendants—the voting members of the Bar’s Board of Directors—are not responsible for taking enforcement actions against attorneys who fail to pay the legal services fee.”

The bar contends the court lacks jurisdiction to grant the plaintiffs relief “because Defendants are not the cause of, and lack the power to redress, any injury Plaintiffs claim from that fee.”

Along with the motion to dismiss, the State Bar submitted three other filings, laying out almost six decades of SCOTUS precedent establishing the constitutionality of its structure and arguing that it has a statutory obligation to regulate the legal profession and to improve the quality of legal services in Texas – a requirement that it has been fulfilling since 1939.

“The plaintiffs’ efforts to change decades of law is without merit,” said Trey Apffel, executive director of the State Bar. “As we have explained in our court filings, we believe the State Bar is fulfilling all of its statutory and constitutional obligations.”

The State Bar is an administrative agency of the Texas Supreme Court of Texas that provides educational programs for the legal profession and the public, administers the minimum continuing legal education program for attorneys, and manages the attorney discipline system.

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

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

The State Bar is represented by Thomas Leatherbury, Joshua Johnson and Patrick Mixell, attorneys for Vinson & Elkins.

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

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