Mandatory dues required by the State Bar of Texas are constitutional, five lawyers who specialize in legal ethics and discipline told the Fifth Circuit on Friday in a friend of the court brief.
The dues support activities, including legislative and administrative advocacy, that are germane to regulating the legal profession and improving the quality of legal services, the lawyers said. The dues therefore meet the U.S. Supreme Court’s test for compliance with the First Amendment, they said in support of the State Bar’s board of directors.
The brief comes in an appeal by three lawyers who challenged the State Bar’s annual membership fee of $68 to $235 for active members without exemptions and its annual $65 legal-services fee. The district court in May held that the fees didn’t compel speech or association.
Texas Attorney General Ken Paxton (R) weighed in on behalf of the state in a July 7 amicus brief supporting the challengers. The State Bar forces “every attorney in Texas” to fund “a host of political and ideological activities as to which reasonable minds can and do disagree,” Paxton said.
“If the Bar wishes to use member dues to fund political and ideological activities, it first must obtain members’ free, clear, and affirmative consent,” Paxton said. “The current ‘opt-out’ regime is unconstitutional.”
Paxton focused particularly on the State Bar’s lobbying activities. “When a state bar lobbies legislators to, for example, amend the state constitution to change the definition of marriage” or “to change how grandparents may override parents’ rights to determine access to children,” he said, “it steps outside its core functions and becomes a lobbying organization driven by the partisan ideological interests that capture it.”
Further, the Bar’s Access to Justice Commission lobbies legislators for “systemic change,” he said. That’s political lobbying, he said.
But the five legal-ethics specialists said narrow proposed definitions of bar expenditures by opponents of compulsory dues are too restrictive and inconsistent with the Supreme Court standards in Keller v. State Bar of California.
These amici—Charles Herring, Jr., James M. McCormack, Amon Burton, Gaines West, and Robert P. Schuwerk—said the Keller standards’ focus is regulating the profession and improving the quality of legal services. “Statutes can address those same issues, and thus can directly affect lawyer discipline and the quality of legal services,” they said.
Terms in statutes may affect anti-discrimination legal ethics rules and lawyer discipline, for example, they said. “To protect both lawyers and the public, bar associations therefore have a strong interest to actively monitor and potentially attempt to influence that legislation,” they said.
And “family law and criminal statutes regularly require clarification and correction, particularly in response to new court decisions,” they said.
The U.S. Court of Appeals for the Fifth Circuit on Friday set oral argument for Sept. 1.
Consovoy McCarthy PLLC represents the appellants. Vinson & Elkins LLP represents the State Bar officials. Herring & Panzer LLP submitted the brief for the five lawyers. The state attorney general’s office submitted the brief for the state.
The case is McDonald v. Sorrels, 5th Cir., No. 20-50448, amicus brief 7/24/20.
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