In McDonald v. Longley the U.S. Court of Appeals for the Fifth Circuit held that bar activities must be “germane” to practice and that the bar must afford attorneys who disagree a chance to protest their dues.
Specifically, from page 32 of the court’s opinion:
“The Bar’s procedures are inadequate under Hudson. The Bar does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent. Nor does it provide them with any breakdown of where their fees go. Instead, it places the onus on objecting attorneys to parse the Bar’s proposed budget—which only details expenses at the line-item level, often the Bar then leaves the objecting attorney with precious few worthwhile options to express his or her disapproval.”
The bar directors met Sept. 24 to “fix” this.
What they came up was a three page, 1385-word labyrinth designed to frustrate, delay and intimidate lawyers from exercising their rights.
Here are short samples of the expensive, yet indigestible fare the bar has prepared in the State Bar Board Policy Manual.
3.14.02 … A member must submit his or her fully completed State Bar Fees Objection Form in writing no later than 60 calendar days after the annual audit of the State Bar for the fiscal year in which the transaction objected to occurred is published on the State Bar website. Any objection submitted more than 60 calendar days after the annual audit of the State Bar is published on the State Bar website, is untimely and will be rejected without further review.
3.14.03 (C) If the member timely notifies the Executive Director that the member contests the Executive Director’s determination of the member’s claim, under (b)(2) above, then the Executive Director shall submit the member’s objection to the Presiding Judge of the administrative judicial region covering Travis County, who shall appoint a retired, senior, or former judge as the impartial decisionmaker.…
The bitter “dessert” is knowing that the state bar may offer refunds of less than $1.
I have accounting and philosophical differences with the bar’s plan. The bar when offering a minuscule refund will hire auditors and only consider the strict cost of the objected-to program. What about the salaries of the staff and public relations?
The bar contends all its activities are “germane” to the practice of law? The Fifth Circuit and I disagree.
Is it germane to the practice of law that a mandatory bar have a full-time public relations department? This department sends out a clipping service that censors news. It quotes blog and stories from sources such as Texas Lawyer but omits entirely the Sunset Blog authored by Rich Robins. I disagree with some of Robin’s assertions, but he is an attorney and should have the same input as Texas Lawyer or other pro-bar sources. Several Texas newspapers published my column on the bar and free speech, and I had to fight – maybe threaten – to be included. The state bar also prohibits elected directors from writing their own constituent letters; instead the public information department writes them. In a volunteer bar this would be acceptable, and if someone doesn’t like their views they can quit.
The same goes for extra funds and efforts spent to perpetuate an undemocratic election system. Why do we need a committee and staff to nominate bar candidates who are almost always Democrats (I am as well) and who have never uttered a disagreement with any bar policy? Larry McDougal was the exception, but he started early and would have had the signatures to force nomination. We also paid for the promulgation of bar rules often referred to as the “Stop Fischer Amendment” that circumvented 81.019 of the State Bar Act and shortened the time the legislature allowed for independents to garner 5,000-plus signatures. Why should we pay for this elitist, backroom committee when we could replace it by allowing the candidacy of any attorney in good standing who obtains say 1,500 signatures? We spend a fortune on emails, letters and PR begging attorneys to vote for “tweddledee-tweedledum,” yet over a monthlong voting period 80% of the attorneys decline to vote. In a mandatory bar, lawyers should have a real choice.
At the September board meeting after the usual presidential speech, Board Chair Santos Vargas ruled that policy questions to the bar president must be submitted in writing weeks in advance. At that meeting 20 attorneys state spoke in support of my resolution for the Texas Supreme Court’s Remote Task Force to allow attorneys some choice in using ZOOM for non-contested or non-witness hearings well after Covid. My wording was vague as I wanted other directors to take part. For the second meeting in a row, the board tabled it. I know from several Facebook attorney discussion groups, which I founded and have 15,000 Texas lawyers following, that this is what attorneys believe is germane. These meetings are expensive as we transport, house and dine perhaps 50 attorneys and staff members at each meeting. Should attorneys who believe we are wasting their funds be forced to pay?
The bar also spends money to violate free speech. Listen to 40 seconds of oral argument when the Bar claimed otherwise. Here the Fifth Circuit interrupted (at 44:00) and slammed the SBOT. Larry McDougal is only the most visible example of the bar’s censorship.
The state bar is under fire. Aside from the McDonald lawsuit, whose plaintiffs only want to destroy the bar and have never been involved with reform, we have a new suit led by Bob Bennett who has been involved in TLAP and many bar activities. In addition, State Representative Briscoe Cain plans to introduce a bill to sunset the bar next session.
The travails that the state bar faces are not all the fault of the board, which has a “circle the wagons” attitude. Directors aren’t happy that lawyers don’t appreciate the beneficial things the bar does. The CLE department works hard to put on a diverse set of programs. They also forfeit revenue in approving free CLE presentations by people like me who are sometimes critical of the bar. The bar has gone out of its way to help lawyers in need and were perhaps devastated by Covid. It is fair to say no lawyer is denied the right to practice based on finances, and yet lawyers complain.
Because of lawyer apathy, many directors who ran on a reform platform figured out that it is much easier to “go along to get along” or else they will be relegated to irrelevant committees and never nominated to run for bar president. Even my dog Roosticus knows not to complain about my poor cooking if she wants a bite of steak.
I was excluded from the committees that considered these embarrassing rules. Many say the bar is run like a high school student council, but its more petty and sinister. My lawyers-first philosophy and independence make me a target for retribution. After confirming from bar officials that the bar’s plans to fight lawyers who protest, I filed my own short, simple and more equitable plan.
My focus revolves around a check-off box on the annual invoice where attorneys subject to full dues could deduct a flat $100, subject to the following: They must include a link to an online post or a letter demonstrating that they are specifically critical of a state bar policy. This criticism must be dated at least 30 days before the invoice arrives to prevent an easy contemporaneous complaint authored solely for the “discount.” The complaint must articulate a specific bar policy or action. Simply stating the “The state bar (insert invective here)” will not suffice. Beyond that, however, the complaint should be construed liberally, and we should assume that the vast majority of our attorneys are acting honorably. If the bar appeals and ultimately loses, it should pay costs and attorney’s fees.
On the other hand, attorneys who claim the $100 deduction should be not eligible for the 50% bar CLE discount which to an advanced course could easily be worth more that the full amount of dues. Other bar monetary bonus programs may also be forfeited.
In comparison to my plan, the bar’s request is not penny-wise, yet it is certainly pound-foolish. To have our executive director spending time fighting refunds is not a justifiable use of the job’s $300,000 salary and benefits package. The battle will cost us incredibly more in dollars than the $100 refund. Even worse, it will further alienate conservative lawyers and others for exercising their beliefs.
The State Bar of Texas is going in the wrong direction. We need to do our best to assist each of our 107,000 lawyers and make them feel valuable. Diversity relates to more than just skin color, and punishing and excluding those with different opinions is music to the ears of our enemies and a recipe for disaster.
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El Paso attorney Steve Fischer is the elected bar director serving El Paso and West Texas, previously having served in district centered in Corpus Christi. He is the founder of the Facebook attorney discussion groups Texas Family Lawyers, Texas Real Estate Lawyers and others in Estate and Civil Practice. sfischerlaw@gmail.com