State Bar Deunification / Disintegration / Invalidation Endeavors
NEWSFLASH: "Bar wars" litigation to liberate attorneys from oppressive mandatory membership in state bar associations (further explained below) are underway throughout the U.S.A. nowadays. Lawsuits to end compulsory membership in state bars are presently underway in: Wisconsin (Suhr v. Wisconsin Bar), Oklahoma (Schell v. Darby), Utah (Pomeroy v. Utah State Bar) and Oregon (Crowe v. State Bar of Oregon & Gruber v. Oregon State Bar). Efforts are also formally underway to downsize Arizona's state bar, finally separating or "de-unifying" its attorney discipline functions from its potentially corrupting politically & ideologically-charged endeavors. As an update, as of September 2nd of 2024, Oklahoma's Schell is on remand from the 10th Circuit court of federal appeals and is in the discovery stage. Meanwhile Utah's Pomeroy case is on appeal to the 10th Circuit federal court of appeals. Additionally Oregon's Crowe prevailed at the 9th Circuit Court of Federal Appeals, thereby reversing an unfavorable summary judgment at the federal district trial court level. On the other hand, Oregon's Gruber has encountered some obstacles but will hopefully persevere, too. Suhr survives in Wisconsin, as well. Stay tuned! Ultimately it will apparently be necessary to get the U.S. Supreme Court to finally grant certiorari to at least some of the abovementioned plaintiffs. Will they liberate the lawyers from mandatory state bar membership? It is worth noting that state bar associations can promote books potentially authored by such justices. They can also arrange (or indirectly arrange) for lavish trips to make speaking engagements more inviting & rewarding for such justices. Can such possible conflicts of interest be surmounted in the interests of liberating attorneys from state bar tyranny? We derive optimism from how the high court courageously ended using the forty year-old Chevron Deference doctrine in 2024. The justices did this despite the opposition from the "administrative state" which profited handsomely from the deference to federal agencies that the doctrine so often required. It seems that Washington D.C.'s entrenched bureaucrats could have bribed and / or bullied the justices into not doing as they did if the justices were for sale. Perhaps liberating the USA from state bar tyranny really is next on the justices agenda, then?
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At any rate, here are direct links to recent press coverage of Daniel Crowe's (and the Goldwater Institute's) August, 2024 victory in Oregon: Reuters; OregonLive; Courthouse News; Reason / Volokh Conspiracy; Law360; Bloomberg Law; ABA. 9th circuit federal appellate case #23-35193.
Meanwhile, here are direct links to recent press coverage of Daniel Suhr's August, 2024 survival success in Wisconsin: Wisconsin Institute for Law & Liberty; TaxProfBlog; Reuters.
Furthermore, here is information regarding efforts to de-unify the Arizona bar so that its politically charged entities no longer share a budget with its attorney disciplinary one.
Additionally, here is information regarding some previous, albeit recent "partial" victories against other state bars pursued by (still compulsory) attorney members:
Louisiana: Boudreaux v. Louisiana State Bar (Pelican Institute) & Boudreaux v. Louisiana State Bar Association (Goldwater Institute), cited at: Boudreaux v. Louisiana State Bar, 86 F.4th 620 (2023)
Texas: McDonald v. Longley, cited at: McDonald v. Longley 4 F 4th 229 (5th Cir. 2021); No. 1:19-cv-219- LY (W.D. Tex.)
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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 for itself 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 bar 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 such members' 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 80% 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?
LITIGATION: Past & Present:
The Texas Bar lost the following federal case at the 5th Circuit Court of Federal Appeals in New Orleans, Louisiana on July 2nd, 2021 regarding its expenditures of public funds in ways proven to be unlawful:
McDonald v. Longley No. 20-5448, 4 F 4th 229 (5th Cir. 2021); No. 1:19-cv-219- LY (W.D. Tex.).
The Court sternly issued an injunction against that state bar and the case's overall decision's implementation remains a work in progress. The (compulsory member) attorney plaintiff victors subsequently pursued certiorari at the U.S. Supreme Court to fortify their victory and share it on the national level, but (as happens with most cases), certiorari was not granted. Subsequently, during November of 2023 the state bar of Louisiana (also in the 5th Circuit) likewise lost federal litigation to a similarly disapproving attorney member. Information on that case is available at Boudreaux v. Louisiana State Bar Association & Boudreaux v. Louisiana State Bar. Plaintiff attorney Randy Boudreaux and his impressive legal team at the Pelican Institute did not subsequently pursue certiorari but their victory remains a milestone in the quest for liberating legal professions from attorney bar associations.
Interestingly enough, litigants who are similarly opposed to other state bars here in the U.S.A. continue with the push to get certiorari at the Supreme Court, as well... They share in the goal of abolishing having to be members of "unified" state bars that 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 for the members' supposed benefit. Cases are underway from some of the other nearly 30 U.S. states that are still burdened with mandatory membership trade association state bars. State legislatures are increasingly watching and preparing for the event that the U.S.A.'s supreme court does not set aside its existing legal precedent which still allows for mandatory membership state bar associations (Keller v. State Bar of California) like so many still compulsory bar members want it to do. As of the year 2024, Bar wars remain underway in Utah (Pomeroy v. Utah State Bar), Oregon (Crowe v. State Bar of Oregon & Gruber v. Oregon State Bar), and Oklahoma (Schell v. Darby). As of July of 2024, Oklahoma's Schell is on remand from the 10th Circuit court of federal appeals and is in discovery. Utah's Pomeroy case is on appeal to the 10th Circuit federal court of appeals. Oregon's Crowe was headed back to the 9th Circuit after not prevailing on a cross motion for summary judgment while Gruber continues, as well. 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 Texas bar elections when unified bars get away with doing whatever self-enriching, membership intimidating things they want to do? The Texas state legislature has been increasingly watching, with an expedited Sunset review or other action potentially on the horizon. We can expect growing pushes for reforms if not an abolition of the law-evading, sovereign immunity-clinging mandatory membership state bar business model.
Would anyone miss the Texas Bar if membership finally became voluntary? Highly doubtful. Isn't the Texas Bar's approximately 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... Please feel free to contact us with relevant factual reports if you have any that you would like to share.
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Much of what is linked below is included mainly as just a resource for those seeking filings and additional information:
As further background, we mention that during the 2021-22 term, Texas' bar wars cases McDonald v. Firth & Firth v. McDonald weighed in at the U.S. Supreme Court (i.e. the "SCOTUS") along with similar cases from Michigan (Taylor v. State Bar of Michigan) and Oklahoma (Schell v. Darby). They subsequently processed a case from Wisconsin (File v. Kastner), too. The SCOTUS typically grants certiorari to under a hundred cases per year, out of over 7,000 petitions annually. The denial of certiorari regarding the Texas case reassuringly solidifies the Plaintiffs' victory vs. the noncompliant Texas Bar won at the 5th Circuit Court of Appeals, though.
Additionally, Louisiana's Boudreaux participated in oral arguments before the 5th Circuit Court of (Federal) Appeals on July 11th, 2023. Here is the schedule and here is the audio file (MP3) for those (successful) oral arguments: (case # 22-30564). Meanwhile here is an August 22nd, 2023 article from Law360 providing updates on the Bar Wars. Additionally here is a July 11th, 2023 Law360 article covering Boudreaux v. State Bar of Louisiana, and a Courthouse News article covering Boudreaux v. State Bar of Louisiana, too.
Anyway, 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 a strong 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?
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. Here is the case citation for the one involving the Texas Bar:
McDonald v. Longley No. 20-5448, 4 F 4th 229 (5th Cir. 2021); No. 1:19-cv-219- LY (W.D. Tex.).
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... Meanwhile the Texas Bar was found to be in violation of constitutional law that rather closely mirrors Texas' own decades-old Government Code provision §81.034. That provision substantially restricts the use of Texas Bar revenues in the political setting.
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.
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:
Such litigation is underway and we offer more details below...
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:
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
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:
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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:
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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