The Supreme Court of Texas on Wednesday issued an order that redefines aspects of the State Bar of Texas so that the organization’s leaders cannot be viewed as speaking for all bar members or suggesting that all members support the bar’s views or statements.
The Texas Supreme Court order was the result of a petition by the state bar filed with the court on Sept. 30 asking for the changes to be made in the wake of a ruling by the U.S. Court of Appeals for the Fifth Circuit.
The July 2 Fifth Circuit ruling in McDonald v. Longley found that when lawyers who disagree with bar policies or activities are mandated to be bar members, it amounts to a burden on their First Amendment right to freedom of association because “part of the bar’s expressive message is that its members stand behind its expression.”
The Texas court amended the State Bar rules with this provision, which may lift the First Amendment burden: “In no event shall a public representative of the State Bar or its sections or committees purport to speak on behalf of all state bar members or to represent that all state bar members support the message that the representative is conveying.”
It also redefined a bar member as “a person licensed to practice law in Texas.” It also defined enrollment as “the act of registering with the clerk as a person licensed to practice law in Texas.”
Both of those changes are “non-substantial,” according to Vinson & Elkins partner Thomas Leatherbury, who represents the state bar. The State Bar of Texas is a mandatory bar, he noted, so all Texas lawyers are already bar members. Leatherbury said the new wording aligns more closely to the State Bar Act and the Fifth Circuit ruling. The bar was pleased with the Texas Supreme Court order on Wednesday, Leatherbury said.
Since the Fifth Circuit’s July ruling, the State Bar has aimed its strategy toward complying with the Fifth Circuit, rather than litigating further, because some parts of the decision were favorable to the bar. State Bar of Texas president Sylvia Borunda said at the time of the ruling that “The State Bar will inform the 5th Circuit Court of Appeals it will not be filing a petition for panel rehearing or a petition for rehearing en banc.”
William Consovoy of the Consovoy McCarthy law firm, who represents the objecting Texas attorneys in the McDonald case, did not respond to questions about the Texas court’s actions.