Diversity Initiatives’ Supporters Defend Texas Bar Fees

Aug. 7, 2020, 4:32 PM

The State Bar of Texas funds activities that are vital and nonpolitical through its mandatory dues, three groups told the Fifth Circuit in friend of the court briefs.

Attorneys challenging the fees “fundamentally fail to understand that diversity in the legal profession benefits all attorneys, not just diverse ones,” attorneys and several attorney associations said Thursday under the name Concerned Lawyers of Color. “They also fail to grasp the serious harm persistent racial discrimination inflicts on public confidence in the legal system, which is already too low.”

Past state bar leadership in a separate amicus brief filed Thursday took on an earlier brief to the U.S. Court of Appeals for the Fifth Circuit by Texas Attorney General Ken Paxton (R) that characterized diversity initiatives as ideologically charged.

“That the Attorney General under the imprimatur of the State of Texas would—in 2020—attempt to tar programs that seek to increase minority representation, engagement, and involvement in the Texas Bar as being ‘ideologically charged’ or ‘divisive’ incorrectly presupposes that diversity in the profession remains even remotely controversial,” the former leaders of the state bar, of the Bar College, which promotes continuing legal education, and of a council of bar section chairs said.

The briefs oppose three lawyers who challenged the state bar’s annual membership fee of $68 to $235 for active members without exemptions and its annual $65 legal-services fee. The district court in May held that the fees didn’t compel speech or association.

Key organizations receiving state bar funding, the Texas Access to Justice Commission and Texas Access to Justice Foundation, also chimed in Thursday in support of affirmance. The funding is constitutional, and its elimination “would spell a return of the troubling access to justice problems that prompted the Texas Supreme Court to create the Commission nearly two decades ago,” they said.

The groups join several legal ethics lawyers who filed an amicus brief July 24 arguing for the fees’ constitutionality.

The appeal, docketed in June, is on a fast track, with oral argument set for Sept. 1.

Consovoy McCarthy PLLC represents the appellants. Vinson & Elkins LLP represents the appellees, who are state bar officials.

Thompson Coburn LLP submitted the brief for Concerned Lawyers of Color. Gray Reed McGraw LLP represents the past leaders of the bar groups. Baker Botts LLP represents the Access to Justice Commission and Foundation.

The case is McDonald v. Sorrels, 5th Cir., No. 20-50448, amicus briefs 8/6/20.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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