Texas Bar Sunset

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Bar Deunification / Disintegration / Invalidation Endeavors

INTRODUCTION:

Did you know that most attorneys here in the U.S.A. are not required to be a member of any state bar association? Additionally, nearly half of U.S. states do not even have mandatory membership "unified" state bar associations. By "unified" we mean that they merge attorney disciplinary activities with potentially corrupting trade association ones. An example of a corrupting influence is a bar's lobbying for the taxpayer-financed benefiting of special interest-embracing allies who resent some of the bar's (compulsory) members due to their political opposition to such favoritism. Another example involves how the Texas Bar peddles around $13 million worth of Continuing Legal Education (CLE) each year to the same attorneys whom it potentially disciplines. Such a conflict of interest makes (involuntary) bar members need such CLE primarily to try to figure out what the Texas Bar claims its conveniently vague and erratically enforced ethics rules purportedly mean. The self-enriching Texas Bar even sells advertising on the same website where it posts (mudslinging) attorney disciplinary information that it also generates through unpredictably applying mysterious behavioral rules as part of its ethics shakedowns. These sorts of conflicts of interest plaguing unified bars are addressed in this national legal news article, among others.

How does it not represent a (corrupting) conflict of interest for the Texas Bar to profit so much from educating about attorney ethics while simultaneously issuing disciplinary rules & opinions, interpreting and selectively enforcing them, selling advertising on its profitably scandal-laden website and even restricting who can offer competing CLE courses and under which circumstances? The mutual admiration society known as the Texas Bar profiteeringly pontificates about how "unethical" so many different kinds of attorney conduct supposedly are, while nevertheless maintaining a lucrative culture of intimidation for compulsory member attorneys to endure so they would presumably not dare expose embezzlement scandals at the Texas Bar, among other misdeeds. Other conflicts of interest are touched upon in these reform proposals regarding the Texas Bar which that bar continues to refuse to implement while bar leaders further enrich themselves.

Is it not remarkable how according to the National Center for State Courts & the Bureau of Justice Statistics, in 1992 reportedly nearly all civil defendants in the U.S. had legal counsel whereas nowadays that figure is reportedly around 25%? (Source in .pdf format). Why the sharp decline? For one thing, the internet has made it much easier for some shameless folks to vindictively, predatorily and dishonestly complain about an attorney (or group of them) to bar authorities in hopes of avoiding owing legal fees or of otherwise harming their adversaries. Do Texans, who have an increasingly hard time attracting affordable lawyers to their cases & causes, not deserve better than the presently "unified" or "integrated" bar status quo which frightens away attorneys who could potentially be more helpful to possibly risky client prospects? Is it not time to finally separate the (often weaponized) Texas Bar's attorney discipline functions from its potentially corrupting trade association activities so that attorneys will not need to fear (or charge) new clients as much?

Interestingly enough, states such as California and Washington state fairly recently legislatively shed their unified bars, thereby joining states such as New York and Virginia by largely if not entirely avoiding mixing attorney discipline with potentially corrupting trade association functions. Could Texas finally be next? Typically around 76% of mandatory members of the Texas Bar abstain from that bar's internet-enabled, month-long annual elections. The Texas Bar's leadership has apparently never expressed any significant interest in conducting a membership voting referendum regarding whether or not to keep a unified bar intact in Texas though. There is too much profit at stake, after all. Litigation consequently seems highly necessary, does it not? Such litigation is underway and we offer details below...

Constitution

LITIGATION:

*The 5th Circuit Court of Appeals (in New Orleans, Louisiana) is reviewing attorney bar deunification cases from Texas and from Louisiana involving lawyers' suing to opt-out of attorney bar compulsory membership and to invalidate the unified bar business models in their respective states. Here they are:

LOUISIANA:

20-30086 Randy Boudreaux v. LA State Bar Association, et al

Filings, thus far: Boudreaux v. Louisiana State Bar Association (Goldwater Institute) & Boudreaux v. Louisiana State Bar (Pelican Institute).

TEXAS:

20-50448 Tony McDonald, et al v. Randall Sorrels, et al

Oral arguments before the 5th Circuit Court of Appeals took place for both of those cases on Thursday, March 4th, 2021. Here's the audio file for the one for Texas' McDonald v. Sorrels / Longley:

https://www.ca5.uscourts.gov/OralArgRecordings/20/20-50448_3-4-2021.mp3

Here's the audio file for Boudreaux v. State Bar of Louisiana:

https://www.ca5.uscourts.gov/OralArgRecordings/20/20-30086_3-4-2021.mp3

For more details: https://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings

https://www.ca5.uscourts.gov/clerk/calendar/2103/09.htm

https://www.ca5.uscourts.gov/clerk/calendar/int-cal.htm

Could court decisions come out particularly soon thereafter? Stay tuned.

Meanwhile, for more information from the 5th Circuit Court of Appeals:

http://www.ca5.uscourts.gov

CASE INFO & E-FILING---> Case Information ---> Docket Information:

https://ecf.ca5.uscourts.gov/n/beam/servlet/TransportRoom?servlet=CaseSearch.jsp

Bar Wars

Here is some additional background regarding the pending litigation in New Orleans:

*On June 30th, 2020, the Plaintiffs / Appellants in the following Texas bar-disintegration case timely submitted their opening appellate brief to the 5th Circuit Court of Appeals in New Orleans, Louisiana. Here it is:

McDonald v. Sorrels Appellant's brief

20-50448 Tony McDonald, et al v. Randall Sorrels, et al

Media coverage: Southeast Texas Record, July 2020: McDonald v. Sorrels, intended to disintegrate the State Bar of Texas, reaches the U.S. Court of Appeals for the Fifth Circuit.

*Here is the amicus brief against the Texas Bar which Texas' Office of the Attorney General and Texas' Solicitor General jointly submitted to the 5th Circuit Court of Appeals on July 7th, 2020. Here is the previous amicus brief against the Texas Bar which Texas' Office of the Attorney General had submitted at the trial court level back in 2019.

Media coverage: Southeast Texas Record, July 2020: Texas' Attorney General and Texas' Solicitor General jointly file an amicus brief against the State Bar of Texas with the 5th Circuit Court of Appeals.

*Here is the Appellee Texas Bar's reply brief, filed on July 30th, 2020.

*Here is the Appellants' reply brief, filed on August 14th, 2020.

Media coverage: Southeast Texas Record, August 2020: Briefing concludes in McDonald v. Sorrels at the 5th Circuit Court of Appeals.

*Here are judicially requested supplemental briefs from the Appellants and from the Appellees.

Filings, thus far (at the federal district court level) are maintained here:

https://www.courtlistener.com/docket/14629202/mcdonald-v-longley/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

 

ELSEWHERE IN THE U.S.A.:

For additional directly pertinent information including this appeal's relevance to the U.S. Supreme Court's evolving analysis of bar disintegration, please see below.

*Rather similar deunification petitions have been working their ways through courts in Utah (Pomeroy v. Utah State Bar), Michigan (Lucille Taylor v. State Bar of Michigan), Oklahoma (Schell v. Gurich), Oregon (Crowe v. State Bar of Oregon); elsewhere there: (Gruber v. Oregon State Bar), and in Wisconsin (File v. Kastner). They are all part of a growing pursuit to have the courts remedy the longstanding "unified bar" problem there and wherever it remains, nationwide. Might you be aware of similar endeavors elsewhere? If so, please let us know.

*The U.S. Supreme Court has been increasingly noticing these issues while reviewing petitions for writ of certiorari on behalf of (involuntary) members of still "unified" or "integrated" state bar associations from Wisconsin (Jarchow v. State Bar of Wisconsin [SupremeCourt.gov, certiorari denied, but with dissent] / Jarchow v. State Bar of Wisconsin [Scotusblog]) and previously North Dakota (Fleck v. Wetch [SupremeCourt.gov, certiorari denied] / Fleck v. Wetch [Scotusblog]). It seems that the divided high Court could be receiving the bar disintegration-related products of divided federal circuits before too much longer... Legal news media has been increasingly noticing this overall subject, as this biting coverage of Jarchow v. State Bar of Wisconsin helps demonstrate.

*The de-unification movement is not about to fade away, either. "While 31 states require lawyers to belong to bar associations in order to practice law, 19 do not...[SOURCE.]" Here is a merely semi-accurate list of states with "unified" / "integrated" mandatory membership bars, and those without them.

As further background from here in Texas regarding the pending litigation, on March 6th, 2019, three (involuntary) members of the Texas Bar sued the leadership of the State Bar of Texas in a federal district court in Austin. Their goal has been no longer having to pay annual dues to a bar association whose trade association functions do not justify mandatory membership, much less its compulsory subsdizing.

Here is information regarding that case at the federal district court level:

https://www.courtlistener.com/docket/14629202/mcdonald-v-longley/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

The plaintiffs in McDonald v. Sorrels filed that lawsuit pursuant to U.S. Supreme Court jurisprudence referred to here by (now retired) Texas Bar president Joe Longley in his letter to the Texas Attorney General's office (hereinafter: OAG). In that letter, Joe requested the OAG's opinion regarding whether or not the Texas Bar is operating legally in light of such jurisprudence.   That new caselaw includes: Janus v. State, County and Municipal Employees, 138 S.Ct. 2448 (June 27, 2018), and more recently Fleck v. Wetch, 868 F.3d 652 (8th Cir. 2017), vacated and remanded [in light of Janus], 2018 WL 6272044 (Dec. 3, 2018).   President Longley’s request's identification tag with the OAG for the relevant inquiry is:   RQ-0265-KP, which is available at:  https://www2.texasattorneygeneral.gov/opin/opin_recent.php .  The OAG has since filed an amicus brief in support of the abovementioned involuntary members, which is available here.

Anyhow a day-by-day report of the filings & developments in the 3 abovementioned Texas Bar members' federal district court case (McDonald v. Longley, before Judge Lee Yeakel) is available here, while the initial lawsuit is available in .pdf format below.

Newsflash 2020: Victorious plaintiff in Janus v. AFSCME requests that the U.S. Supreme Court require a refund of previous years' annual dues payments.

Case links:

Janus v. AFSCME (2020) / Janus v. AFSME (2020)

Previously: Class action lawsuits are increasingly emerging in the growing pursuit of compulsory dues-refunds.

Meanwhile the initial complaint in McDonald v. Longley is readily & freely viewable (in complete form) on this page in Microsoft's browser (for example). One may scroll up and down the pages by (for example) touching a page with your cursor and moving your cursor up & down. If you use Google's Chrome browser, however, please click the blue "open" button (a bit far, below) and the document should save to your hard drive in a folder of your choosing. If you use a cellphone to try to view this, you might (perhaps) want to view this on a desktop computer instead.

In case you have trouble downloading the lawsuit, it is also available on Pacer, as well as on CourtListener here.

Case 1:19-cv-00219

(U.S. District Court for the Western District of Texas in Austin, with Judge Lee Yeakel)

 

 

Remarkable, is it not?

 

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