Mandatory Bar Challenges

State Bar of Texas (McDonald et al v. Sorrels et al)

Timeline and Related Litigation

Quick Facts

  • In March 2019, three Texas lawyers sued the State Bar of Texas claiming that under Janus v. AFSCME (2018), it is unconstitutional for an attorney to be required to join the State Bar of Texas in order to practice law. The plaintiffs also challenge Bar programs that they claim exceed the Bar’s “core regulatory functions.”

  • In May 2020, U.S. District Judge Lee Yeakel granted the State Bar’s cross-motion for summary judgment and denied the plaintiffs’ motion for partial summary judgment. The plaintiffs appealed the decision to the 5th Circuit Court of Appeals in New Orleans. 

  • In July 2021, a panel of the 5th Circuit upheld the constitutionality of the vast majority of the challenged State Bar programs and activities, including the Bar’s CLE and annual meeting programming, diversity initiatives, the Texas Bar Journal, and the bulk of its access to justice initiatives.

  • The panel found parts of the State Bar’s and Texas Access to Justice Commission’s legislative efforts were not germane to the Bar’s purposes of regulating the legal profession or improving the quality of legal services available to Texans, and therefore use of mandatory dues for those efforts violates the constitutional rights of the plaintiffs. The panel also found the Bar’s procedures are not sufficient to allow members to challenge activities they believe to be nongermane.

  • The panel vacated the district court’s summary judgment, rendered partial summary judgment in favor of the plaintiffs, and remanded the case for the district court to determine the full scope of relief to which the plaintiffs are entitled.

  • The court also granted a preliminary injunction preventing the State Bar from requiring the three plaintiffs to join or pay dues pending completion of the remedies phase before the district court on remand. The injunction does not prevent the State Bar from requiring membership of, or collecting dues from, other bar members. 

  • The State Bar Board of Directors voted on July 19, 2021, to direct counsel to notify the 5th Circuit that the Bar would not seek rehearing of the panel decision. The Bar is now working with the district court to bring the litigation to a conclusion.

  • The 5th Circuit panel opinion does not change the longstanding U.S. Supreme Court precedent that supports the mandatory bar. The opinion also does not undermine the fundamental structure and purposes of the State Bar of Texas, which was established by the Texas Legislature in aid of the Texas Supreme Court’s inherent authority to regulate the practice of law.

Timeline

March 6, 2019

Plaintiffs filed complaint

March 25, 2019

Plaintiffs filed motion for preliminary injunction and motion for partial summary judgment on liability

April 25 – May 17, 2019

Amicus briefs filed in support of Plaintiffs:

Amicus briefs filed in support of the State Bar:

May 13, 2019

State Bar filed responsive briefs, cross-motion for summary judgment, and motion to dismiss for lack of subject-matter jurisdiction

May 23, 2019

Status conference held; Court scheduled summary-judgment merits hearing for August 1. Plaintiffs agreed to pay their 2019- 2020 State Bar dues.

May 31, 2019

Plaintiffs filed responses and replies.

June 18, 2019

State Bar filed reply in support of cross-motion for summary judgment

August 1, 2019

Summary-judgment merits hearing held; motion for preliminary injunction dismissed

May 29, 2020

Judge granted State Bar’s cross-motion for summary judgment and denied plaintiffs’ partial motion for summary judgment

June 2, 2020

Plaintiffs filed notice of appeal to the 5th Circuit 

June 30, 2020

Plaintiffs filed opening brief with the 5th Circuit 

July 30, 2020

State Bar filed brief with the 5th Circuit 

March 4, 2021

Oral arguments held at the 5th Circuit

July 2, 2021

5th Circuit Opinion

July 7 & 8, 2021

State Bar notified the 5th Circuit it did not intend to file a petition for panel rehearing and/or rehearing en banc, and the 5th Circuit mandate issued

August 30, 2021

District court held status conference regarding remedies phase of the case

September 30, 2021

State Bar files summary of action taken at Board of Directors meeting on September 24, 2021, regarding rule and policy changes in response to 5th Circuit’s decision

For a list of all of the McDonald v. Sorrels filings, please visit this page.

State Bar of Texas (Bennett v. State Bar of Texas)

Other Mandatory Bar Challenges

State Bar Association of North Dakota (Fleck v. Wetch

Louisiana State Bar (Boudreaux v. Louisiana State Bar and the Louisiana Supreme Court)

Oklahoma Bar Association (Schell v. Gurich)

Oregon State Bar (Crowe v. Oregon State Bar)

Oregon State Bar (Gruber v. Oregon State Bar)

Utah State Bar

State Bar of Michigan (Taylor v. State Bar of Michigan et al)

State Bar of Wisconsin (Jarchow v. State Bar of Wisconsin)

State Bar of Wisconsin (File v. Kastner et al)

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