Texas Attorney General Ken Paxton. Photo: Diego M. Radzinschi/ALM

Texas Attorney General Ken Paxton is supporting the legal arguments of three attorneys who sued the State Bar of Texas alleging it violated their rights by spending part of their mandatory dues for political and ideological speech.

Paxton's office filed an amicus brief Friday in the case, McDonald v. Longley, that said the Texas bar is violating its members rights by compelling their financial support for those alleged activities without first getting affirmative consent. The brief said there's no justification for the bar to force attorneys to fund such activity through mandatory dues. Paxton urged the court to grant the plaintiffs' motion for partial summary judgment on liability.

Paxton's spokesman, Marc Rylander, wrote in an email that the bar is meant to regulate the practice of law and it must limit its spending to that function.

“Attorney General Paxton is committed to ensuring that Texas attorneys' free speech rights are protected from the State Bar's current unconstitutional practice,” Rylander said.

McDonald is progressing, along with cases in North Dakota, Oklahoma and Oregon in which lawyers have made similar claims, relying on a 2018 U.S. Supreme Court case, Janus v. AFSCME, that ruled that public sector nonunion workers cannot be required to pay union dues as a condition of employment.

Texas Bar Board Chairwoman Laura Gibson said she's disappointed that Paxton sided with the McDonald plaintiffs in his brief.

“No other attorney general has filed a brief supporting a claim a mandatory bar is unconstitutional, so he's kind of an outlier in that regard,” said Gibson, a partner in Dentons in Houston. “We're confident the State Bar Act is constitutional, and the State Bar of Texas is fulfilling its statutory responsibilities as an administrative arm of the Texas Supreme Court.”

Paxton's amicus brief said the bar could find a way to meet is core goals of regulating the profession and improving legal services without violating lawyers' First Amendment rights. It argued current practices cannot meet the level of scrutiny the law requires.

According to Paxton, the U.S. Supreme Court ruled in 1990 in Keller v. State Bar of California that bar associations can spend funds on regulating lawyers or improving legal services, but forcing lawyers to pay for ideological and political activities violated their free speech rights. In a later case, Janus, the Supreme Court clarified that such mandatory dues can only be justified if there's a compelling state interest, and no less restrictive means to meet the state's interest. Otherwise, the members must voluntarily consent to their funds' use for the ideological or political activities. Although Janus wasn't specific to bar associations, Paxton argued that its holding ought to apply to the bar and mandatory dues.

Paxton claimed in the brief that the activities the McDonald plaintiffs complained about–its legislative program, lobbying and ideological programming—are ideological and political, and not related to the bar's core regulatory functions. Mandatory dues shouldn't pay for them, although it would be permissible for the legislature to fund them, or voluntary lawyer dues. If the bar does use mandatory dues, lawyers must give affirmative and voluntary consent for their dues to pay for the challenged activities, Paxton wrote. The bar's current practice of allowing a lawyer to opt-out of his dues going for activities he disagrees with is unconstitutional.

Paxton's brief said, “Anything less tramples on the core associational and free speech rights of Texas attorneys.”

Read the brief here.

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