U.S. Supreme Court precedent allows the State Bar of Texas to collect mandatory dues and support an array of programs that regulate the legal profession and improve the quality of legal services, according to a new brief filed Friday at the U.S. Court of Appeals for the Fifth Circuit.
Lawyers for the Texas bar, which are fighting a lawsuit brought by three lawyers challenging the very existence of mandatory bar associations, argue that two “binding Supreme Court precedents” – Keller v. State Bar of California and Lathrop v. Donohue – “foreclose plaintiffs’ claims.”
“The court held that mandatory bar membership does not violate attorneys’ First Amendment right to freedom of association,” states the bar association’s 79-page brief.
“The court unanimously held that mandatory bar fees do not violate the First Amendment’s free speech guarantee when they are used for expenditures necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal service available to the people of the state,” according to the brief.
Three Texas lawyers – Tony McDonald, Joshua Hammer and Mark Pulliam – sued the Texas bar and its leaders in March 2019 claiming that they are being illegally forced to be members of the bar, to pay dues to an organization that is involved in “political activities” and to support ideological ideas with which they disagree.
Under Texas law, lawyers practicing in Texas must be licensed and regulated by the State Bar of Texas and pay an annual fee of up to $235.
The state bar uses those fees and its influence for a wide array of administrative and regulatory matters, but also to help improve legal services to the poor, including for military veterans and abused women. The bar also has programs that promote diversity in the legal profession and continuing legal education for its members.
U.S. District Judge Lee Yeakel of Austin issued an 18-page opinion May 29 rejecting the plaintiffs’ objections.
“Because the bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory bar membership and compulsory fees do not otherwise violate the First Amendment, plaintiffs’ claim that the bar unconstitutionally coerces them into funding allegedly non-chargeable activities without a meaningful opportunity to object necessarily fails as a matter of law,” Judge Yeakel wrote.
The judge also ordered the three lawyers to pay the legal fees of the state bar.
The trio appeals to the Fifth Circuit, which has scheduled oral arguments Sept. 1.
Thirty states have mandatory bar associations similar to Texas’s. Five other state bars are also being accused of violating the First Amendment rights of their members.
Texas Attorney General Ken Paxton filed an amicus brief with the Fifth Circuit supporting the position that the mandatory dues are a constitutional violation.
“Compelled political speech through compulsory dues is blatantly incompatible with this nation’s bedrock principles of individual liberty,” said Paxton, who is a state employee and frequently takes political positions in cases totally unrelated to any litigation in Texas.
“Pursuing a career as an attorney should never require someone to forgo their First Amendment rights,” he said. “Members of an organization should not be used as a funding source for political causes that they do not support, and I will tirelessly defend citizens’ constitutional right to free speech.”
But lawyers at Vinson & Elkins, which is the Texas’ largest and most profitable law firm, and which is representing the State Bar of Texas in this matter for free, wrote in their final brief to the Fifth Circuit that the three lawyers and Paxton overlook one simple factor: U.S. Supreme Court precedent.
“Keller does not prohibit a bar from engaging in activities merely because some might label them as ‘political or ideological,” V&E partners Tom Leatherbury and Pat Mizell wrote in the state bar’s brief.
“Plaintiffs’ scattershot, undeveloped challenges to particular bar programs are meritless,” they argue. “The bar has adopted robust safeguards to ensure that all of its activities comply with Keller.”
The V&E lawyers point out that the Texas bar provides “numerous opportunities to object to bar association programs or the ways that the leaders spent members money.
“Members may file a written objection to any ‘proposed or actual expenditure’ at any time, and seek a pro rata refund of a portion of their membership fees, plus interest, on the ground that the expenditure allegedly violates Keller,” the brief states. “Since the protest procedure’s adoption in 2005, only one person, who is not involved in this lawsuit, has invoked it.”