A development that could bring massive change to the legal profession

 Michael Kennedy, Vermont's Bar Counsel, has posted a short comment on a recent development in the area of alternative business structures and its effect on the regulation of the profession and the practice of the profession.  You can read it here.

Texas Supreme Court Preliminarily Approves Delivery of Legal Services by Licensed Paraprofessionals and Court-Access Assistants

 A couple of days ago I posted that Washington is considering a proposal to allow alternative business structures for the practice of law.  In a related matter, now comes news that the Texas Supreme Court has preliminarily approved the delivery of legal services by licensed paralegals and other non-lawyer approved professionals.  This is part of a trend that has been (very slowly) developing among various jurisdictions.  Recently, New Hampshire expanded its program.  See here.

Go here for more on the story.

New disciplinary charges filed against Texas Attorney General and against Rudy Giuliani for their participation in attempts to overturn the 2020 presidential elections

The Texas state bar has sued the state's Attorney General Ken Paxton arguing professional misconduct for trying to void Biden election.  Courthouse News Service has the story here and Above the Law has a comment here.

Meanwhile, the District of Columbia office of disciplinary counsel has filed charges against Rudy Giuliani alleging that he made baseless claims in federal court filings about the results of the 2020 presidential election in Pennsylvania.  You can read more about this story in The Guardian, Politico, Jurist and the Legal Profession Blog.

Supreme Court will not review decision that found the Texas mandatory bar system unconstitutional

Back in July of 2021 I reported that the Court of Appeals for the Fifth Circuit ruled that the mandatory bar system used in Texas was unconstitutional.  See here and here.

I am writing about this again today because Bloomberg Law is reporting that the U.S. Supreme Court just announced that it will not review this ruling.  See here.

For other posts on challenges to mandatory bar systems go here and scroll down.

Texas files complaint against Trump campaign lawyer Sydney Powell for filing frivolous lawsuits

 A standing committee of the State Bar of Texas filed a complaint in the District Court of Dallas County, Texas against former president Donald Trump’s attorney Sidney Powell, claiming that she engaged in misconduct by pursuing baseless lawsuits alleging fraud in the 2020 presidential election. The complaint, which was filed on March 1, was released to the public on Tuesday.  You can read the (very short) complaint here.  Jurist has more on the story here.

Texas state bar faces new challenge over membership requirement to state bar association

The ABA Journal is reporting that the State Bar of Texas is facing a new lawsuit claiming that it has continued to require lawyers to join and pay dues, despite a recent federal appeals court ruling finding that the practice violated their First Amendment rights.  You can read the ABA Journal article here.  You can read the complaint here.  In it, the plaintiffs allege that the State Bar Association has ignored a ruling of the Court of Appeals for the 5th Circuit.  I wrote about that ruling here and the ABA has a story on it here.

Bar complaint filed against Texas AG Ken Paxton

 As you know by now, Rudy Giuliani's law license was suspended in New York and Washington DC as a result of his involvement in the frivolous lawsuits seeking to overturn the election.  See here and here .

Now comes news that a complaint similar to the one filed against Giuliani in New York has been filed against Ken Paxton in Texas.  Paxton, who is under indictment for securities fraud and also facing allegations from his own staff that he took bribes and abused his office, filed a lawsuit in the Supreme Court of the United States seeking to invalidate the electoral votes in Pennsylvania, Michigan, Georgia, and Wisconsin.  The Supreme Court dismissed the suit almost immediately for lack of standing.

The complaint against Paxton, filed by 31 legal professionals including several past presidents of the Texas state bar, alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

Above the Law has more information here.

Court of Appeals for the Fifth Circuit finds that mandatory bar system used in Texas is unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  For my posts on this topic go here.

Today I am writing to report that the Court of Appeals for the Fifth Circuit recently invalidated the mandatory bar system used in Texas finding that because the State Bar of Texas engages in political activities that fall outside the scope of the interests of all its members, it cannot force attorneys to join it and pay mandatory dues.  But the court also provides some options to remedy the problem.  As the court explains:

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

The case is called Mcdonald v.  Longley and you can read the opinion here.  

Courthouse News Service has more information here.  The Louisiana Legal Ethics Blog has commentary and a link to the opinion here.

Texas State Bar is investigating the state's Attorney General for filing frivolous lawsuit in attempt to attack the result of the presidential election

Last week, the AP reported that the Texas State Bar of Texas is investigating the Attorney General Ken Paxton based on the argument that Paxton's attempt to attack the result of the presidential election was both frivolous and unethical.  Law & Crime has more information here.  The Dallas Morning News has more here.  The ABA Journal has more here.

Judge sanctions lawyer and client $150K, citing ‘mountain of evasiveness’ and ‘outright lies’

 Long time readers of this blog know that I often complain that judges do not do enough to sanction attorneys who misbehave during the process of discovery in litigation.  So, it is refreshing to see a story that proves me wrong.  The ABA Journal is reporting that a Texas judge has ordered a Houston-area lawyer and his client to be jointly sanctioned $150,000 for the client’s “outright lies” in litigation and “a mountain of evasiveness” in discovery.  Go here for the story.

Texas Supreme Court reiterates that former criminal defendants suing their lawyers for negligence must prove actual innocence

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel. (Go here and scroll down for stories on this.)  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

Earlier this year, the Supreme Court of Texas reaffirmed its position on this in a case called Gray v. Skelton, which you can read here.

What makes this case interesting is that it clarifies that merely getting a conviction reversed, or being "exonerated" is not, by itself, enough to show actual innocence.  As the court explains, 

...exoneration . . . requires not only that the underlying criminal conviction be vacated but also proof of innocence. Innocence, however, can be established in more than one way. It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding. . . .Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys. 

Wisconsin: mandatory bar membership is not unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. 

Today I am here to report that we now have a decision on the subject.  About two seeks ago, the State Bar of Wisconsin won dismissal of a suit alleging its requirement that attorneys pay bar dues to practice in the state unconstitutionally compels them to participate in the state bar’s advocacy.  The case is called Jarchow v. State Bar of Wis. and you can read it here.

Rather than address the issues head on, however, the court held that U.S. Supreme Court precedent requires dismissal of the plaintiffs’ First Amendment challenge. It cited a 1990 opinion in which the high court upheld similar requirements imposed by the California bar against free speech and free association challenges.  The trial court said it’s bound by the 1990 decision, and only the Supreme Court can say otherwise. “Plaintiffs must seek relief in a higher court,” it said.

Judge reprimanded for refusing to perform same sex marriages

Back in April I reported that the ABA Standing Committee on Ethics and Professional Responsibility released a Formal Opinion (No. 485) concluding that a judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples and that a judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages.  See here.

I am writing about this today again, because I just read that on November 12, 2019, the Texas State Commission on Judicial Conduct “publicly warned” a judge who performed opposite-sex marriages, but who “declined to perform same-sex weddings.” In “warning” the judge, the Commission cited Texas Code of Judicial Conduct Canon 4A(1), which requires a judge to handle extra-judicial activities in a manner so as to “not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” The case is called In re Hensley, Tx. CJC No. 17-1572 (Nov. 12, 2019).

Go here for more on this story.

Update on challenges to mandatory bar association membership around the country

As I have written before, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Texas Bar Ethics Committee Opinion on a lawyer's duty to safeguard client funds for the benefit of a third party -- UPDATED

Back in September 2018, the Texas Bar Ethics Committee issued a short ethics opinion trying to explain the proper analysis attorneys should follow to determine if they owe a duty to a third party who claims to have an interest in client money in the lawyer's trust account.

More specifically, the opinion addresses these two questions:  "when does a third party have an interest in client funds sufficient to trigger a lawyer’s duty to disburse or safeguard those funds for the third party’s benefit?" and "[d]oes termination of the attorney-client relationship affect a lawyer’s duty to safeguard or disburse client funds in which a third party claims an interest?"

You can read the opinion online here or download it in pdf here.

UPDATE (7/1/19):  Ethical Grounds has posted a comment on the opinion here.

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

UPDATE 5/28/19:  Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed.  The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21. 

Texas Attorney General sides with lawyers challenging mandatory bar membership

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  See here and here, for example.  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota. 

In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association.  More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons. 

For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.

The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas.  He is the only AG to have taken this step so far in all the states where lawsuits have been filed.

Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.

Texas lawsuit challenges mandatory membership in State Bar Association

Three Texas lawyers have filed a federal lawsuit claiming that mandatory membership in the State Bar of Texas violates their First Amendment right against coerced speech because the State Bar Association is using members’ mandatory dues, among other things, to fund programs that help undocumented immigrants seeking asylum, diversity initiatives and programs related to access to legal representation.  The case is called McDonald v. Longley and you can read the complaint here.

The question of the constitutionality of an integrated bar is not new.  In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

Also, I discussed in some detail the back and forth history of the issue in Puerto Rico here.

The Texas Bar allows its members to opt out of supporting causes they do not believe in, but the plaintiffs in the lawsuit allege this system is inadequate.  At the very least, they argue, the system should be one in which the members would be required to "opt in" to avoid forcing them to fall into the default position of supporting causes they may or may not agree with.

Courthouse News and The ABA Journal have stories on the Texas lawsuit here and here.  According to the ABA Journal's story, the Texas lawsuit is among at least four current lawsuits that challenge mandatory state bar dues.

Texas adopts duty to keep up with technology as part of concept of competence

Yesterday I posted that the Washington DC bar is considering adopting the Model Rules' approach to competence which now includes a duty to keep abreast of developments in "technology."

Today I heard that Texas is the most recent state to have adopted this notion.  You can read the details of the story here.

Texas Committee proposes new rules on advertising

As you probably remember, the ABA recently amended the rules related to advertising and solicitation.  Some states are now following its lead.

The Texas Committee on Disciplinary Rules has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.  You can read the proposal here.  Brian Faughnan has a short comment on what he sees as the pros and cons here.