The State Bar of Texas on Thursday made public a broad range of rule changes to comply with a federal appeals court ruling in July that the bar association violated the First Amendment by imposing membership and dues on lawyers who object to certain specific bar activities.
In a filing with the U.S. District Court for the Western District of Texas, the bar said it would “strictly limit the types of legislation on which the bar may take a position and the matters in which the Bar may file amicus briefs.”
The state bar also said no representative of the organization would “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.”
Other changes promulgated in the filing would implement new procedures for ensuring that the bar’s budget would not be used for expenditures that are “non-chargeable” for members, and that members would be alerted to possibly non-germane expenditures.
Those and other new rules are aimed at responding to the U.S. Court of Appeals for the Fifth Circuit’s July suggestion in McDonald v. Longley that the bar could remedy First Amendment violations by no longer “engaging in non-germane activities.” Members will be shown the changes via email and on the bar’s website.
The McDonald case is one of several across the country in which mandatory dues and membership are being challenged as an unconstitutional form of compelled speech. Supreme Court precedents have allowed state bars to undertake germane activities such as regulating the legal profession and improving the quality of legal services, but cases that may alter those precedents are reaching the Supreme Court.
The State Bar’s sweeping changes to conform with the Fifth Circuit were forecast when State Bar of Texas president Sylvia Borunda Firth said in July, “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.”
Since some of the Texas bar’s activities were upheld in the Fifth Circuit ruling, battling against the court did not appear to be the best path.
The State Bar’s filing on Thursday does not end the litigation. The bar is petitioning the Texas Supreme Court to adopt some of the new rules, and it also told the district court that further policy changes may be warranted.
The bar also plans to confer with the objecting plaintiffs to see whether “the parties can reach an agreement to resolve this case” in light of the new rule changes.