NEW ORLEANS – Ever since a trial court sided with the State Bar of Texas, the Bar has continued to advance a highly “polarizing agenda” on racial issues, argue three attorneys seeking to end mandatory dues.
The legal fight to end forced funding of the Bar is currently before the U.S. Court of Appeals for the Fifth Circuit.
In March 2019, attorneys Tony McDonald, Joshua Hammer and Mark Pulliam sued the Bar’s Board of Directors, alleging First Amendment rights violations under Janus v. AFSCME – a 2018 Supreme Court decision that found that millions of public servants no longer have to pay a government union as a condition of employment.
The attorneys argue they shouldn’t be forced to fund the Bar in order to work in their chosen profession, especially when considering that the Bar goes beyond its regulatory function by engaging in “extensive political and ideological activities,” such as diversity initiatives and legislative programs.
A final judgment granting the Board summary judgment was entered on May 29, prompting the appeal to the Fifth Circuit.
On July 7, Attorney General Ken Paxton threw his support behind the trio of attorneys, filing an amicus brief that states the Bar has “no legitimate interest” in forcing lawyers to financially support its “divisive ideological agenda.”
Court records show the Bar filed a response brief on July 30, which argues the attorneys’ “scattershot” challenges to its “activities” are meritless.
Citing Keller v. State Bar of California, the Texas Bar asserts the Supreme Court has held that lawyers may be required to join and pay dues to a state bar and that a state bar may use those dues to improve the quality of legal services.
“Plaintiffs’ scattershot, undeveloped challenges to particular Bar programs are meritless,” the Bar’s brief states. “The Bar has adopted robust safeguards to ensure that all of its activities comply with Keller.
“The challenged activities are no exception. Each furthers the state’s interests in regulating the legal profession or improving legal-service quality, and many, if not all, advance both interests.”
The attorneys filed a reply brief on Aug. 14, which states the Bar is advancing an interpretation of Keller that would “effectively eliminate any meaningful First Amendment checks on its use of coerced dues.”
“According to the Bar, any expenditure is permissible – no matter how political, ideological, or controversial – as long as the Bar can articulate some tenuous connection to ‘regulating the legal profession and improving the quality of legal services,’” the attorneys’ reply brief states.
“That interpretation of Keller is untenable on its own terms, as the Supreme Court has repeatedly made clear that ‘political’ or ‘ideological’ activities cannot be funded through coerced dues without a member’s affirmative consent.”
Ever since the lower court ruled in favor of the Bar, the Bar has “continued to advance a highly ideological and polarizing agenda on racial issues,” the brief states.
The footnotes of the brief reference the Bar’s actions following a controversial social media post made by its president, Larry McDougal, last month.
McDougal commented on an election worker wearing a Black Lives Matter T-shirt. The post sparked a social media firestorm. A few hours later a comment he made in 2015 calling BLM a terrorist group was unearthed. The Bar openly denounced McDougal’s remarks.
According to the brief, the Board, spurred by the comments, held a 12-hour special meeting on July 27 in which it:
- Created “yet another Task Force” on diversity, equity and inclusion;
- Created a working group to consider numerous diversity and inclusion suggestions;
- Mandated that the Bar’s Board “complete implicit bias training” and consider making implicit bias training a Minimum Continuing Legal Education requirement for Texas attorneys; and
- Studied whether Texas should adopt the controversial American Bar Association Model Rule 8.4(g).
The rule, which the attorneys say has been broadly criticized as an unconstitutional restriction on speech, calls for lawyers to educate themselves about reasonable standards of acceptable conduct and prohibits conduct “the lawyer knows or reasonably should know is harassment or discrimination.”
“Absent this Court’s intervention, the Bar will surely continue to use coerced dues to support those highly controversial and politically charged activities,” the reply brief states.
The attorneys are asking the Fifth Circuit to reverse the trial court and grant their summary judgment motion on liability.
They are represented by Consovoy McCarthy attorneys William Consovoy, Jeffrey Harris, Cameron Norris and Tiffany Bates.
The Bar is represented by the Vinson & Elkins law firm.
Western District of Texas case No. 1:19-cv-00219
Fifth Circuit case No. 20-50448