Lawyers win against Texas bar on First Amendment rights breach

The decision marks the first time a federal appeals court struck down mandatory bar membership

Lawyers win against Texas bar on First Amendment rights breach

Three lawyers have emerged victorious against the Texas bar in the 5th US Circuit Court of Appeals at Louisiana after they accused the bar of breaching their First Amendment rights.

Tony McDonald, Joshua Hammer and Mark Pulliam claimed that the majority of the legislation the Texas bar was spending mandatory membership dues on was irrelevant to regulating the legal profession and to bolstering legal service quality, according to the 2 July court opinion written by Judge Jerry Smith. Moreover, the lawyers challenged the inadequacy of the existing procedure in place for bar members to contest how membership fees were utilised.

The court sided with the lawyers, pointing out in their decision that “many of the bills the bar supported relate to substantive Texas law and are wholly disconnected from the Texas court system or the law governing lawyers’ activities.” The court described the organisation’s push for amendments to the definition of marriage in the Texas Constitution and for changes to family law as “obviously non-germane.”

Given the bar’s participation in such activity, the court ruled that compelling lawyers to join the organisation breached their First Amendment rights.

The court also addressed McDonald, Hammer and Pulliam’s claim that the Texas bar’s procedure for objecting to an expenditure was not conducive to facilitating complaints. The court found that the organisation “does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent,” nor with a breakdown of how the membership dues are applied.

“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 without significant explanation – to determine which activities might be objectionable,” Smith wrote in the court opinion. “The bar then leaves the objecting attorney with precious few worthwhile options to express his or her disapproval.”

While attorneys could either file complaints with committees and sections or voice objections at the Texas bar’s annual proposed budget hearing, Smith said that the procedures provided “cold comfort.”

“Any objector’s opposition can be summarily overruled, leaving that lawyer on the hook to fund ideological activities that he or she does not support,” he wrote. “To obtain a refund, the bar requires that attorneys object to a specific activity. Moreover, whether a refund is available is left to the sole discretion of the bar’s executive director, and refunds are issued only ‘for the convenience of the bar’. In the event a refund is denied, the objecting attorney is out of luck.”

Thus, the court judged that the Texas bar “may not continue mandating membership in the bar as currently structured or engaging in its current activities.”

Texas is among 31 US states that have mandatory bars, which make membership a requirement in order for an attorney to practise law in the state in question. Following its judgment, the court outlined several constitutional options for the Texas bar to consider:

  • The bar can stop participating in non-germane activities
  • The state of Texas can establish a voluntary bar association and regulate the legal profession directly
  • The state of Texas can follow California’s example and develop a hybrid system

Lawyer Jacob Huebert, who acted for Louisiana lawyer Randy Boudreaux in a similar case contesting the Louisiana bar’s procedure for challenging expenditures on non-germane activity, said in a statement to Law360 that the court’s ruling in McDonald, Hammer and Pulliam’s case marked the first time a federal appeals court struck down mandatory bar membership and dues.

Texas bar executive director Trey Apffel told Law360 that the bar was assessing its next move following the court’s decision.

“We continue to believe the state bar’s legislative program and all of its access to justice initiatives are germane to regulating the legal profession and improving the quality of legal services, and respectfully disagree with the panel’s contrary conclusion,” he said.

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