The so-called “bar wars” that erupted over the State Bar of Texas last month have calmed down – for a while.
A July 2 ruling by the U.S. Court of Appeals for the Fifth in the case of McDonald v. Longley held that the state bar was violating the First Amendment by imposing mandatory membership and dues on lawyers who object to certain bar policies or activities.
The immediate upshot of the ruling was a preliminary injunction preventing the bar from imposing dues on those lawyers. Simultaneously, the case went back to the United States District Court for the Western District of Texas for a determination of what remedies the lawyers should have.
On Tuesday, lawyers for the State Bar filed an unopposed motion for a status conference to discuss further proceedings with Western District judge Lee Yeakel. Vinson & Elkins partner Tom Leatherbury, who represents the State Bar, said the goal is to “make changes to policies and procedures that will make us more compliant” to the Fifth Circuit ruling.
Earlier, the State Bar decided not to petition the Fifth Circuit for a rehearing, en banc or otherwise. The apparent strategy is this: since the Fifth Circuit ruling does allow dues that fund many activities that are “germane” to the bar’s functioning, an appeal may not yield any better result than that.
“We are pleased that the 5th Circuit panel upheld the constitutionality of nearly all of the State Bar of Texas programs and activities challenged by the plaintiffs,” State Bar of Texas president Sylvia Borunda Firth said in a statement July 19.
William Consovoy of the Consovoy McCarthy law firm, who represents the objecting Texas attorney plaintiffs, did not respond to questions about the status of their side of the case. But it is very possible that the plaintiffs will file a cert petition with the U.S. Supreme Court in hopes of striking down mandatory bars altogether.
Meantime, the mandatory bar issue is already making its way to the high court – but the vehicle so far is an Oregon case, not the Texas dispute. Crowe v. Oregon State Bar, asserting the same First Amendment claim, may be assessed by the high court on September 27 at the so-called long conference, when the justices peruse petitions that have piled up over the summer recess.
“This issue must ultimately reach the Supreme Court and we are very hopeful that they will take up our cert petition in Crowe,” said Timothy Sandefur, vice president for litigation of the Goldwater Institute, which is handling the Crowe case. “We believe the time has definitely come for the court to vindicate the First Amendment rights of attorneys nationwide who don’t want to be forced against their will to join these partisan bar associations and fund their political activism.”
To assess the status of the mandatory bar issue and what happens next, we called on University of Connecticut School of law professor Leslie Levin. She is an expert on the legal profession and lawyer regulation, and has written about mandatory state bars.
What do you think is the significance of the Fifth Circuit Texas mandatory bar decision?
In the short term, McDonald reminds mandatory bars of how careful they must be about political and ideological activities. It does provide them with some guidance about the types of activities that are acceptable. So that’s a good thing. Unfortunately, it seemingly will cause the demise of the volunteer committees that worked on substantive law issues. That’s really unfortunate. Lawyers who want to participate in substantive law reform efforts may need to pay to join other lawyer associations in order to do that sort of work. It may also mean a loss for the legislature.
Some Supreme Court justices have indicated they’d like to revisit the mandatory bar issue. Do you think the Texas decision will be the vessel for that reconsideration?
I think that between the Fifth Circuit’s decision in McDonald and the [related] decision in Bordeaux v. Louisiana State Bar Association, it is pretty clear that these issues are going to continue to be litigated against the state bars. The Janus v. AFSCME decision really cut the legs out from under Keller v. State Bar of California and I think the Supreme Court must recognize it now, even if some of the justices didn’t realize it then.
The real question is how long is the U.S. Supreme Court going to avoid the issue? I am sure they don’t particularly want to tell 31 states that they have to change their state bar organizations. That can take a lot of work and a lot of money.
You’ve written that lawyers will be the “biggest losers” if the Supreme Court rules that under the First Amendment, the bar dues cannot be compelled.
It’s really hard to say. I think if the court is intellectually honest in its First Amendment analysis as it stands today, that is the result it must reach. On the other hand, I doubt that it really wants to be responsible for forcing the possible dismantling of the mandatory bars in 31 jurisdictions.
If the mandatory dues fall, what will be the impact on the legal profession?
Ultimately, I don’t see it having a huge impact on the legal profession. In 2017, California separated the State Bar’s regulatory functions from its voluntary bar-type functions by creating the California Lawyers Association and the sky did not fall.
The one effect I do anticipate is that lawyers may have a little less control in shaping regulation that affects the legal profession. The mandatory state bars in some states have been very influential when it comes to the content of lawyer regulation–even more so than voluntary state bars. Texas is a prime example. The potential for mandatory state bars to have so much power was part of the reason why lawyers wanted mandatory bars in the first place. I do think that judges will remain sensitive to lawyer input, however, and so I don’t think the effects will be that great in most states.