May 1, 2019
Texas Attorney General Ken Paxton has quietly waded into a lawsuit that could upend the State Bar of Texas, siding in a new legal brief with three conservative lawyers who argue the current structure of the state entity that regulates the legal profession violates their First Amendment rights.
Like similar organizations in dozens of other states, the Texas Bar collects mandatory membership dues — just one revenue stream of many for the quasi-governmental entity, which adjudicates grievances against attorneys and puts on educational seminars. In March, three Texas lawyers — Tony McDonald, Josh Hammer and Mark Pulliam — sued, pointing to the bar’s legislative and diversity initiatives and arguing that their compulsory dues cannot be spent on political activities they do not endorse.
Their lawsuit was one of a handful filed in the wake of Janus vs. American Federation of State, County, and Municipal Employees, a 2018 U.S. Supreme Court case that decreed that mandatory public union dues may not be used for political activities without consent. The lawsuit, an existential threat to the state bar, could force the organization to splinter into a mandatory organization that would handle disciplinary disputes and a voluntary organization that could put on educational programming and other events — or even force regulation of the legal profession into the Legislature’s hands.
Similar court battles are being fought in Oregon, North Dakota and Oklahoma. But Paxton, bar leadership said, is so far the only state attorney general to come out against his own state bar, and to blast a state law as unconstitutional — an unusual move given that his agency is tasked with defending Texas law.
“Were we surprised by that? Absolutely,” said Laura Gibson, who chairs the bar’s board of directors. “The Texas Constitution charges the attorney general, the state of Texas’ top lawyer, with defending our state laws and our state constitution. He’s charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees.”
“In our view, the state Constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend,” she added.
Puzzled by what they consider a highly unusual legal maneuver, skeptics have looked to Paxton’s ties to the plaintiffs in the suit. One of them, McDonald, works as general counsel for the hardline conservative group Empower Texans, whose PAC has donated hundreds of thousands of dollars to the political campaigns of Paxton and his wife, state Sen. Angela Paxton. Pulliam, another plaintiff, has donated thousands of dollars to that PAC, according to state campaign finance records, and he has also contributed to its affiliated website, Texas Scorecard. And Hammer, the third plaintiff, works with the First Liberty Institute, a Plano-based law firm dedicated to religious liberty issues that often finds itself allied with Paxton in legal matters, and which has seen several of its staff land posts in the attorney general’s office.
“To me, what this is is a purely political attack,” said David Chamberlain, a former chair of the state bar who said he was speaking only on his own behalf. “I’m very, very concerned that [Paxton] is doing this at the behest of Empower Texans.”
The attorney general’s office did not respond to questions about any ties to the plaintiffs. But experts pointed out that the friend-of-the-court brief was filed noticeably early, before the state bar has even filed its formal response to the lawsuit. Paxton himself is a member of the bar.
Paxton has also declined to defend the Texas Ethics Commission against past litigation from Empower Texans. Declining to represent a state agency is a relatively rare move, but in the case of the ethics commission, Paxton was following the example of his predecessor, Gov. Greg Abbott, who also declined to represent the agency.
Asked about how Paxton’s involvement came about, Hammer said only that he knows “Paxton and his team to be comprised of dedicated and principled constitutionalists.”
“I was pleased to see their excellent amicus brief supporting our important First Amendment challenge, and I hope that it proves to be persuasive,” he told The Texas Tribune.
McDonald and Pulliam both deferred to their Virginia-based attorney, William Consovoy, who also declined to answer questions about how the three plaintiffs — who told Texas Lawyer last month they do not know each other well — came together to file the lawsuit. Consovoy, a prominent beltway attorney and a member of the conservative legal group the Federalist Society, works as a personal attorney to President Donald Trump, fighting to keep Trump’s tax returns private from Congress.
In the amicus brief, filed Friday with no fanfare from his office, Paxton asked a federal judge to put a halt to the state bar’s “current practice of forcing all licensed Texas attorneys to fund a host of ideological and political activities through mandatory membership dues.” Specifically, the three conservative lawyers who launched the lawsuit object “to being compelled to subsidize activities unrelated to the Bar’s regulatory functions, such as its ‘diversity’ initiatives, its legislative program, and its advocacy of pro bono and ‘access to justice’ programs,” according to the lawsuit.
The plaintiffs contend, for example, that the bar “aligned itself in support of migrants and against the federal government” by facilitating “efforts to obtain attorneys for non-citizens who illegally entered the United States through the southern border.”
Joe Longley, the president of the bar, wrote on the bar website in June 2018 that “Your State Bar of Texas exists, in part, to aid the courts in carrying on and improving the administration of justice and to advance the quality of legal services to the public.”
“This is not about politics,” he added at the time, laying out a list of volunteer resources. “It’s about access to justice.”
At the very least, Paxton argued, the bar should have to obtain members’ consent before spending dues on political or ideological programs.
“Anything less tramples on the core associational and free speech rights of Texas attorneys,” Paxton wrote.
Mandatory bar membership dues are scaled based on how long a lawyer has been practicing; for the first few years of an attorney’s career, the annual fee is $68; it peaks at $235; and after age 70, practicing lawyers no longer have to pay the fee.
The bar hasn’t raised its dues since 1991 — in part, Gibson said, because its non-mandatory activities, like putting on continuing legal education seminars and hosting diversity-focused events, raise revenue that help defray the cost of membership. Gibson said if the lawsuit succeeds, dues will likely skyrocket for the more than 100,000 Texas attorneys who are active members of the bar.
“$235 is going to look like a really good deal if the bar is deregulated — watch out what you wish for,” Gibson said.
The new friend-of-the-court brief was not Paxton’s first brush with the legal issues presented in the case. In January, Longley requested a formal legal opinion from Paxton, asking: “Is it constitutional to require Bar members to pay compulsory Bar dues, including to support Bar programs … that Bar members object to on First Amendment grounds (e.g., free speech, freedom of association), inclμding programs that are not within the regulatory functions of the State Bar?” With litigation underway, Paxton hasn’t provided a formal answer.
And in March, shortly after the lawsuit was filed, the attorney general’s office called the bar, asking whether it expected the attorney general to provide representation, according to a bar official. The attorney general’s office did not respond to questions about the call. The bar opted to continue working with a private law firm, Vinson & Elkins. Attorneys from that firm had defended the bar in the past, including when a white attorney sued for discrimination, challenging a requirement that some seats on the bar’s board of directors be set aside for women or ethnic minorities. After a change in the requirement, a federal judge dismissed the lawsuit. Consovoy, who is challenging the state bar in this First Amendment fight, led that charge against the bar as well.
In early April, Gibson said, the bar’s attorneys first heard from the attorney general’s office that Paxton was considering inveighing against the bar’s structure.
“The State Bar Act of Texas is a law which I would think the attorney general would defend,” Gibson said.
Disclosure: The State Bar of Texas and Vinson & Elkins have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.