Texas Bar Sunset

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Bar Deunification / Disintegration / Invalidation Endeavors

Texas' bar wars cases McDonald v. Firth & Firth v. McDonald weighed in at the U.S. Supreme Court along with similar cases from Michigan (Taylor v. State Bar of Michigan) and Oklahoma (Schell v. Darby) during the 2021-22 term. The SCOTUS grants certiorari to under a hundred cases per year, out of over 7,000 petitions annually. The denial of certiorari reassuringly solidifies the Plaintiffs' victory vs. the noncompliant Texas Bar won at the 5th Circuit Court of (Federal) Appeals in New Orleans, Louisiana on July 2nd, 2021. Meanwhile a case from Wisconsin (File v. Kastner) is headed for the U.S. Supreme Court as this April, 2022 article explains. Furthermore, additional bar wars are proceeding in lower level courts in Utah (Pomeroy v. Utah State) and in Louisiana (Boudreaux v. Louisiana State Bar Association; Boudreaux v. Louisiana State Bar), with probably more on the way from some of the other approximately 30 U.S. states with mandatory membership trade association state bars. Stay tuned!

As you know, around 80% of Texas Bar members refrain from voting in annual, internet-enabled bar elections, as we document here. Why bother voting in bar elections when such unified bars (which predatorily mix attorney discipline with potentially corrupting trade association functions such as the sale of continuing legal education [at over $100 per hour] that interprets conveniently vague ethics rules) get away with doing whatever self-enriching, membership intimidating things they want to do, anyway? The Texas state legislature has been increasingly watching, with an expedited Sunset review prospect potentially in the cards. We can expect growing pushes for reforms if not abolition of the law-evading, sovereign immunity-clinging mandatory membership state bar business model.

Anyhow, kudos to the following journalists and activists who covered the Bar Wars or filed amicus briefs in them at the U.S. Supreme Court level: ABA, Ballotpedia, Reuters (April 4, 2022), Bloomberg, TexasLawBook, Southeast Texas Record (April 5th, 2022), Southeast Texas Record (March 1st, '22), Southeast Texas Record (Jan. 20 '22) & Southeast Texas Record (Jan. 11 '22), Law360 (April 5, 2022), Law (April 5, 2022), Reuters (Nov. 30, '21), America First Legal, Americans for Prosperity, Atlantic Legal Foundation, Buckeye Institute, Cato Institute, Freedom Foundation, Law360, Reason Foundation, & TexasBarBlog.

Regarding Texas, here is the November 24th, 2021 petition for certiorari in .pdf format. Essentially the plaintiffs in the Texas case (Tony McDonald & Mark Pulliam) who prevailed on July 2nd, 2021 vs. the Texas Bar at the 5th Circuit Court of Appeals seek to liberate the rest of Texas from having to continue paying the societal costs of its lawyers' being required to remain members of the Texas Bar. A lot of time, resources, grit and altruism went into this potentially liberating litigation endeavor. Here are the heroes who have been litigating this issue against the Texas Bar for years for those plaintiffs and for other dissatisfied members of the Texas Bar. The endeavor is not even tax-deductible for their law firm, either. This is quite a potential benefit for the rest of us, is it not? Notice how reform proposals that could help Texans keep going nowhere in Texas? If only more of the U.S. Supreme Court's justices would take an interest in this subject, despite some justices' and judges' noteworthy conflicts of interest as far as state bars are concerned. For more details, here are direct links to relevant media coverage that we have found thus far: Southeast Texas Record; Reuters; Bar Blog (a Texas Bar publication); Ballotpedia case summary / Ballotpedia news article; TexasLawyer; List23, TexasLawBook, Law360 & Chicago Daily Law Bulletin.

Previously: On Wednesday, October 13th, 2021, the Supreme Court of Texas issued this order (in .pdf format) in response to the pending Texas bar disintegration lawsuits. The order purports to modify the Texas Government Code §81.051 in such a way that seemingly makes it no longer necessary to be a member of the Texas Bar in order to practice law in Texas, doesn't it?

Bar Wars


Previously: On Monday, August 30th, 2021, some Texas-licensed lawyers dealt with the Texas Bar's continuing push for annual bar dues payments due the following day. Nonpayers' attorney licenses would be suspended and ultimately canceled in the absence of timely payment. The attorneys' response? They retained eager legal counsel and filed a class action lawsuit against that compulsory membership labor union. Among other remedies, they seek a return of previous years' dues payments. Inspired? For more details, here are relevant articles which we have found so far: Reuters; ABA Journal; Ballotpedia News; Law360; TexasLawBook & LawsInTexas.


PREVIOUSLY
: On July 2nd, 2021, the 5th Circuit Court of Appeals in New Orleans issued its decisions in the McDonald v. Longley / Sorrels case and in the neighboring Boudreaux v. State Bar of Louisiana one. Their decisions are linked (in .pdf format) from the previous sentence. Anyhow in those cases, members of both the Texas and Louisiana bars sued to avoid having to continue being (compulsory) dues-paying members. Despite the wealthy bars' corrupting influences stemming from their vast compulsorily extracted financial resources, the plaintiffs and their capable lawyers in these 2 cases nevertheless eventually prevailed on some significant counts. This happened even as the 5th Circuit ruling regarding Texas makes clear (in footnotes 14 & 16, for example) that they are basing their decision on rather obsolete precedents (the Lathrop & Keller decisions of several decades ago, which are based in part on principles embraced by the now overturned Abood precedent) instead of on much newer precedents such as Janus v. AFSCME. Janus, a 2018 case, more or less bans mandatory membership in public sector unions that are politically active. Predatorily self-enriching bar associations that unify disciplinary functions with potentially corrupting trade association ones prefer that Janus did not exist...

Anyhow similar litigation is already underway in several other of the approximately 31 U.S. states where mandatory membership, "unified" attorney bars still exist. We link to most of them below, relevant legal filings for which one can find by searching below for words such as Utah, Michigan, Oklahoma and Wisconsin. Most attorneys in the U.S.A. do not have to join a "unified" bar and the fight for similar fairness (if not a greater one) here in Texas (etc.) is just getting started. Depending upon how the U.S. Supreme Court ultimately rules (which it narrowly refrained from doing in 2020 in the Jarchow v. State Bar of Wisconsin case while Ruth Bader Ginsburg was still on the Court), great progress is potentially in store for lawyers and laypersons in Texas, as well as in Louisiana, etc.

At any rate, would anyone miss the Texas Bar? Highly doubtful. Isn't the Texas Bar's nearly 80% annual voter abstention rate regarding its month-long, internet-enabled annual elections remarkable? Compulsory members know their votes won't make a difference anyway. Isn't the Texas Bar's skillful persistence in successfully evading necessary reforms year after year noteworthy, too? And let's not think that the embezzling at the Texas Bar has been nearly as contained as some there have claimed. Improprieties reported there are just the tip of the iceberg at the quid pro quo-plagued Texas Bar... Stay tuned! And please feel free to contact us with relevant factual reports.

Media coverage (thus far): SETexas Record article; InDefenseOf Liberty article (Goldwater Institute); Associated Press article; Courthouse News article; Reason articles 1 & 2; Bloomberg article; Law360 article 1 & Law360 article 2; Law.com article; NBC DFW article; TheHayride article; Nola.com; Houston Chronicle article; ABA article, U.S. News article; Miami Herald article; WashingtonPost article; etc...

 

Previously:

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 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 further addressed in this national legal news article, among others. Does any other state bar association in the entire U.S.A. have such profound conflicts of interest? We have not found any... Please contact us in case we are mistaken.

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. By the way, how do you feel about the Texas 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? The Texas Bar has been known to claim it does not happen. It does, though...

Anyhow, 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? The Texas Bar's so-called Access to Justice (slush) fund endeavors get more financial support when the general public is successfully misled into believing that market forces in the (competing) private sector are not sufficient to attend to presently unserved legal needs. Is it not time to finally separate the Texas Bar's attorney discipline functions (which adversaries often weaponize against one another) from the Bar's 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) has reviewed 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

On July 2nd, 2021, the 5th Circuit Court of Appeals in New Orleans issued its decisions in favor of the plaintiffs in the McDonald v. Longley / Sorrels case and in the neighboring Boudreaux v. State Bar of Louisiana one.

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


Here is some additional background regarding that 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

Bar Wars

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; Supreme Court: Taylor v. State Bar of Michigan), Oklahoma (Schell v. Darby; Supreme Court: Schell v. Darby), and 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 Texas (McDonald v. Firth) and Oklahoma (Schell v. Darby) as well as others mentioned above. Previously the SCOTUS received petitions from Wisconsin (Jarchow v. State Bar of Wisconsin [SupremeCourt.gov, certiorari denied, but with dissent] / Jarchow v. State Bar of Wisconsin [Scotusblog]), North Dakota (Fleck v. Wetch [SupremeCourt.gov, certiorari denied] / Fleck v. Wetch [Scotusblog]) and Oregon (Crowe v. State Bar of Oregon) [certiorari denied]; elsewhere there: (Gruber v. Oregon State Bar) [certiorari denied]. Some believe that the divided high Court is getting increasingly ready to liberate lawyers from unlawful compulsory bar membership throughout the U.S.A... 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 .pdf format).

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)

 

 

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