In response to the U.S. 5th Circuit Court of Appeals’ ruling in McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021), the State Bar of Texas has adopted numerous changes to its rules and policies. Brought by three attorneys in 2016, the lawsuit challenged the constitutionality of Texas’ mandatory bar. The complaint alleged that the SBOT engaged in “inherently political and ideological” activities, such as promoting diversity and access to justice. The lawyers further objected to the Bar’s legislative activities and the $65 charge lawyers pay to help fund legal aid programs. A federal district in Austin granted summary judgment in favor of the Bar.
This summer a panel of the 5th Circuit substantially upheld the constitutionality of a mandatory bar but called for the implementation of policy changes ensuring that the Bar’s functions are germane to regulating the legal profession and improving the quality of legal services for all Texans. Specifically, the court held that parts of the Bar’s and Texas Access to Justice Commission’s legislative activities were not germane, but that the Bar’s annual meeting programming, diversity initiatives, access to justice programs, and publication of the Texas Bar Journal met constitutional requirements and could be funded by mandatory dues. The court remanded to the district court for the purpose of crafting remedies. SBOT submitted the proposed changes to the district court at the end of September, and SCOTX adopted them in October. The district court has yet to sign off.
The policy changes, which may be read below, focus on segregating permissible functions and establishing a process for members (defined as Texas licensees) to challenge functions before an impartial arbiter. Further, members or representatives of the Bar may not represent that they speak for the Bar in a public matter. Likewise, the Bar itself cannot represent that it speaks for all of its members. The Board’s budget committee will scrutinize budget items to determine which nongermane functions may not be charged to members and remove them from the budget. The types of legislation on which the Bar may take a position and file amicus briefs must now “address the State Bar, the regulation of lawyers, the functioning of state or federal courts, or the functioning of the legal system.” The legislative activities of the Access to Justice Commission will likewise be subject to review and approval. The Bar must also publish a breakdown allocating a portion of bar dues attributable to each major category of expenses, which must be audited by an independent auditor. Finally, the changes establish a process whereby members can object and potentially receive refunds of parts of their dues determined by an independent arbiter to be nongermane.
The Texas litigation is part of a nationwide trend. Similar challenges have been pursued again mandatory bar associations in Oklahoma, Louisiana, North Dakota, Oregon, Utah, Michigan, and Wisconsin. The U.S. Supreme Court upheld the mandatory California bar in Keller v. State Bar of California, 496 U.S. 1 (1990).