Three Texas lawyers sued the State Bar of Texas Monday claiming that the organization is still requiring its members to pay annual dues despite a recent federal appeals court ruling that some of its activities violate the First Amendment rights of some of those members.
The lawyers – two from Houston and one from Fort Worth – filed a lawsuit seeking class action status on behalf of some or all if the 105,000 attorneys licensed in Texas claiming the state bar is “unjustly enriched” by continuing to collect and keep the annual dues of the members who disagree with some of the bar association’s activities.
The lawsuit, which was filed in the Southern District of Texas, asks a federal court to create a “constructive trust” designed to hold “all monies and assets obtained by the defendants and that wealth should be disgorged” from the state bar and returned to those in the class action.
The U.S. Court of Appeals for the Fifth Circuit ruled in July that the Texas Bar violated the First Amendment rights of some of its members by using their mandatory dues to support political efforts that are not “germane to its interests in regulating the legal profession and improving the quality of legal services.”
The three-judge panel of the Fifth Circuit basically stated that the state bar needs to cease those activities, such as lobbying the Texas Legislature to refine marriage, or create a more effective opt-out system for members who disagree.
“The Texas Bar amounts to a labor union containing well over 105,000 actively licensed attorneys who are given no choice but to either keep individually paying the defendants hundreds of dollars of compulsory dues each year or forfeit their rights to practice law here in Texas,” the complaint states.
In a written statement, the State Bar of Texas said it is “reviewing the new filing” and made the following comments:
“The bar is working in U.S. District Judge Lee Yeakel’s court to update policies and procedures in compliance with the 5th Circuit Court of Appeals panel opinion in McDonald v. Sorrels. The bar and its leadership are committed to the timely resolution of the McDonald case in compliance with the 5th Circuit decision.
“While the 5th Circuit opinion issued a preliminary injunction preventing the State Bar of Texas from requiring the three plaintiffs in McDonald v. Sorrels from joining or paying dues pending completion of the remedies phase now under way, the injunction does not prevent the bar from requiring membership of, or collecting fees from, other bar members. On August 30, the Texas Supreme Court issued an emergency order extending the dues deadline for State Bar members to October 31, 2021.”
The 15-page lawsuit filed Monday states that the state bar has not taken the legally required steps to follow the Fifth Circuit’s decision and still demands that members, including those who object, pay their mandatory bar membership dues.
“As of the date of this filing, [state bar leaders] have also offered no refunds for their already sufficiently proven and established transgressions,” Houston lawyer Rich Robins wrote in the complaint for the plaintiffs. ‘They continue proceeding callously, resulting in further damage to the class.”
The three named plaintiffs are Robert Bennett and Andrew Bayley of Harris County and Nachael Foster of Tarrant County. The complaint states that the “class” contains “far more than 100 members” and that the “aggregate amount in controversy exceeds $5 million.”
The lawsuit states that all class members be provided “a refund of the full amount paid in membership dues to the defendants during recent years, plus court costs, damages and expenses including attorney’s fees.”
Bennett, according to the complaint, “has received multiple mailings from the defendants during the summer months of 2021 … in pursuit of still more annual dues payments.”
“Mr. Bennett disapproves of still having to make such expenditures, while not receiving refunds for his similar ones of previous years, in light of the Texas Bar’s repeated and related encroachments upon his First Amendment rights,” the lawsuit states.
The lawsuit takes a bit of a weird twist on page four of the complaint.
Robins states that Houston is an appropriate venue for the litigation because it is “where the Texas Bar’s very substantial facility” is involved in “prosecutorial misconduct” regarding “attorney discipline.”
“Plaintiffs’ counsel Rich Robins suspects [the state bar facility] predatorily pursues unsubstantiated claims against scrutinizing attorney members based on vague interpretations of ethics rules which are applied in flagrant violation of U.S. Supreme Court caselaw that is otherwise meant to protect and fortify attorney free speech, due process and other constitutional rights.,” the lawsuit states.
Robins claims that the state bar’s Houston office is “make work for otherwise idle bar employees” and helps “maintain a culture of intimidation that distracts still compulsory bar members from thinking about the lavish salaries.”
“Remarkably, the quantity of six figure salary recipients at the Texas Bar has already jumped by a third since 2016, from 29 to 39 barely five years later,” the lawsuit states. “Plaintiffs’ counsel Rich Robins nevertheless sincerely admits that the Texas Bar has some apparently very fine and seemingly well-meaning employees working in it, too, even though he has not yet personally discovered any presently working here in Houston.
“Litigation is necessary here in Houston to further analyze the substantial improprieties plaguing the Texas Bar here, still with impunity,” the complaint states.