PRESIDENT’S PAGE MAY 2022
The State of Our Mandatory Bar
A years-long legal challenge to the mandatory, unified bar structure in Texas ended last month when the U.S. Supreme Court denied certiorari in McDonald v. Firth. The court also declined to hear similar challenges to the mandatory bars in Oklahoma and Michigan.
I am pleased the court continues to recognize the longstanding legal precedent that supports the mandatory bar structure. Thirty other states and the District of Columbia use a mandatory bar structure because it is a proven, effective way to regulate the legal profession and improve the quality of legal services provided to the public.
The Texas case dates to March 2019, when three lawyers sued the State Bar of Texas claiming it is unconstitutional for an attorney to be required to join the bar to practice law. The plaintiffs also challenged State Bar programs that they claimed exceed the bar’s “core regulatory functions.”
After losing in district court, the plaintiffs appealed to the 5th Circuit Court of Appeals. In July 2021, a 5th Circuit panel upheld the constitutionality of most of the challenged State Bar programs and activities, including the bar’s continuing legal education and annual meeting programming, diversity initiatives, the Texas Bar Journal, and the bulk of its access to justice initiatives. However, the panel found certain legislative efforts of the State Bar and the Texas Access to Justice Commission were not germane to the bar’s purposes of regulating the legal profession or improving the quality of legal services available to Texans. The panel also found bar procedures insufficient to allow members to challenge activities they believed to be nongermane.
The State Bar of Texas Board of Directors approved changes to rules and policies to comply with the 5th Circuit opinion in September. The changes included updates to the bar’s budgeting, legislative, and expenditure objection processes designed to make our operations more transparent. (See Executive Director Trey Apffel’s column on page 244 of the April 2022 issue for details on changes to the budget process.)
The plaintiffs appealed the 5th Circuit opinion to the U.S. Supreme Court, and on April 4, the court declined to hear the case. You can find a timeline of the litigation and read all court filings on the State Bar website at texasbar.com/mcdonaldvfirth.
So, where does this leave us?
The state of our mandatory, unified bar is strong. The fundamental structure and purposes of the State Bar of Texas remain intact. We will continue to serve Texas lawyers and the public in fulfillment of the bar’s statutory purposes.
Sylvia Borunda Firth
State Bar of Texas
Sylvia Borunda Firth can be reached by email at email@example.com.TBJ