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SCOTUS Calls a Halt to ‘War’ Against Texas Bar Mandatory Dues

April 4, 2022 Tony Mauro

The U.S. Supreme Court on Monday denied review of a petition brought by three Texas lawyers who argued that the State Bar of Texas was violating the First Amendment by imposing membership and dues on lawyers who object to certain bar policies or activities.

“We are pleased the Court continues to recognize the longstanding precedent that supports the mandatory bar structure,” Texas bar president Sylvia Borunda Firth said in a statement Monday morning. “Thirty other states and the District of Columbia use a mandatory bar structure because it is a proven, effective way to regulate the legal profession and improve the quality of legal services provided to the public. The State Bar of Texas will continue to serve Texas lawyers and the public in fulfilment of its statutory and constitutional obligations.”

Jeffrey Harris, the partner at Consovoy McCarthy who represented bar challengers Tony McDonald, Joshua Hammer and Mark Pulliam, did not respond to a request for comment.

Firth’s pledge that the Texas Bar will fulfill its “statutory and constitutional obligations” is likely a reference to the bar’s changes after the U.S. Court of Appeals for the Fifth Circuit ruled partly in favor of the challengers. The appeals panel gave the State Bar breathing room by approving financing activities germane to the legal profession and legal services, rather than political or ideological subjects.

The Supreme Court also denied certiorari Monday in two mandatory bar cases – one from Michigan and the other from Oklahoma. The actions may slow the momentum of nationwide “bar wars,” but other challenges could be likely.

Goldwater Institute vice president Timothy Sandefur, one of the leaders challenging mandatory bar membership, said Monday, “We’re disappointed that the Court didn’t take this opportunity to correct the shameful violations of the constitution in which these mandatory bar associations—staffed by members of the profession that bears the greatest obligation to respect constitutional rights! But we’re confident that one of the other cases addressing this question will soon reach the Court and that this injustice will be corrected.”

The lengthy dispute over mandatory dues is a touchy subject throughout the legal profession. In the Supreme Court only two justices, Clarence Thomas and Neil Gorsuch, have shown interest in taking on the issue, but challengers were hoping that newer justices would be on their side.

The Texas Bar’s counter-brief in the case Firth v. McDonald told the high court, “Dismantling the mandatory Texas State Bar after its over eight decades of service to the people of Texas would be a wrenching change that would jeopardize the smooth functioning of Texas’s legal system and likely require an extensive legislative response.” Vinson & Elkins partner Tom Leatherbury represented the State Bar in the case.

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