U.S. District Judge Lee Yeakel of Austin said he would soon rule on a legal challenge by three attorneys who argue that mandatory bar membership and compulsory bar dues violate their First Amendment rights.
Yeakel said during a hearing Thursday that the record before him contains everything he needs to dispose of the case on the merits, and that he’d issue an opinion as quickly as he could. He then dismissed the plaintiffs’ motion for a temporary injunction, which asked the court to protect the lawsuits from repercussions for not paying their bar dues while the lawsuit is pending.
“You’ve focused the court on what the court needs to consider,” Yeakel said.
The attorney-plaintiffs in McDonald v. Sorrels claim the bar violates their First Amendment rights by forcing them to join and pay mandatory dues, which the bar then spends on alleged political and ideological activities. They object to the bar’s LGBT continuing legal education offerings, pro bono program for undocumented immigrants, attorney diversity programs, a $65 legal aid fee and the bar’s legislative affairs activities.
The case used to be named McDonald v. Longley but changed names when the bar presidency passed in June from 2018-219 Bar President Joe Longley to 2019-2020 Bar President Randy Sorrels.
The case is similar to legal challenges that lawyers have filed against mandatory bar associations in other states, which all rely on a 2018 U.S. Supreme Court ruling in Janus v. AFSCME, which ruled that public sector nonunion workers cannot be required to pay union dues as a condition of employment.
The plaintiffs argued in a motion for summary judgment that Janus shows that the bar can’t force lawyers to associate with an organization that engages in political and ideological activities. Lawyers can’t be compelled to pay for bar activities beyond attorney regulation and the improvement of legal services, they claim.
Plaintiffs lawyer Jeffrey Harris, partner in Consovoy McCarthy Park in Arlington, Virginia, told the court that his clients have a powerful First Amendment interest not to join the bar and fund its activities, but the bar doesn’t have a compelling government interest in mandatory membership and compulsory dues.
Twenty-eight states have voluntary bar associations that still regulate attorneys, and the Texas bar has not shown evidence that it couldn’t do the same, he said. The bar should narrowly tailor its operations and ensure it’s using the least restrictive means, he said.
Yeakel asked Harris whether past Supreme Court cases dealing directly with bar associations had ever ruled that narrow tailoring applies to bar associations. When Harris replied that Janus addressed narrow tailoring regarding labor unions, Yeakel said that Janus did not mention the bar-specific case law. Only the Supreme Court may change its own precedent, he said.
“They didn’t change it in Janus,” Yeakel said.
The bar has argued in a cross motion for summary judgment that Janus shouldn’t apply to mandatory bar associations and that it’s already complying with other U.S. Supreme Court cases that directly impact bar associations by ensuring all dues pay for core functions like regulating the legal profession and improving the quality of legal services.
Tom Leatherbury, a partner in Vinson & Elkins in Dallas, who represents the defendants, said that the U.S. Supreme Court in the past has ruled that making an attorney join a bar association does not violate his or her First Amendment right to associate freely. Past cases said that bar associations can charge dues to regulate the legal profession and improve the quality of legal services, he said. And even if some people think some bar activities are political or ideological, as long as they are germane to regulating the profession and improving legal services, then the bar can use mandatory dues to pay for them, Leatherbury argued.
Vinson & Elkins partner Pat Mizell of Houston, who also represents the defendants, said the Texas bar’s legislative program, diversity efforts, access to justice initiatives, continuing legal education and publication all advance the interests of regulating the profession and improving legal services. He noted the plaintiffs have only argued the programs are political or ideological, yet have not attempted to argue that the programs are unrelated to improving legal services.
He said, “We believe that proof is uncontroverted, and the court can use that to decide the case.”