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“A Great Honor”: Standing Up for the State Bar of Texas

It wasn’t just another day in court for Pat Mizell.

On August 1, 2019, the V&E partner stood before U.S. District Judge Lee Yeakel in a courtroom in Austin, Texas. Attorneys Tony McDonald, Josh Hammer and Mark Pulliam had sued Mizell’s client, the State Bar of Texas, claiming it is unconstitutional for an attorney to be required to join the State Bar of Texas in order to practice law.

In particular, the plaintiffs objected to their Bar dues being used to support such activities as pro bono legal services for indigent clients and programs to advance minority, women, and LGBT lawyers. Addressing the court, Mizell described the initiatives one by one and explained how they help fulfill the state’s goals of improving the quality of legal services and regulating the legal profession.

“It was one of my prouder moments as a trial lawyer,” Mizell recalled. “It’s astounding to me that lawyers in the profession would object to a sliver of their Bar dues being spent to foster these programs, and I’m glad to do my part to make sure that the Bar is able to continue those efforts.”

Mizell is one of a group of V&E attorneys who over the past three years have successfully represented the State Bar of Texas in three lawsuits, two of which involved challenges to the Bar’s diversity and inclusion initiatives. In the third case, V&E is defending the Bar in a lawsuit brought by the law firm LawHQ, which is challenging the Bar’s rule banning the use of law firm trade names.

Achieving positive results for the Bar — whose leaders include some of Texas’ leading lawyers — is gratifying on its own. But the V&E lawyers have also had the opportunity to make meaningful contributions to an organization focused on protecting the public and helping lawyers better serve their clients.

“It’s a great honor to work for the State Bar, particularly when you’re defending programs like the programs we’ve been asked to defend — programs that make a difference in people’s lives,” said V&E partner Tom Leatherbury, who leads the V&E team in representing the Bar.

V&E associate Morgan Kelley, said she’s learned a lot about the organization’s commitment to public service. The Bar’s efforts run the gamut from assisting lawyers with mental health and addiction issues to serving as a clearinghouse for legal information and resources during natural disasters.

“The State Bar of Texas is an incredibly important organization, not only for lawyers in Texas, but also for the people of the state,” Kelley said.

High fives from a discerning client

The V&E team’s commitment and track record for producing positive results have earned high praise from the Bar’s leadership.

“We can’t say enough good things about Tom Leatherbury and his team of attorneys. They have just been remarkable. They’ve been responsive. They’ve given us excellent counsel and guidance all through the proceedings. They are so well measured in their analysis of the issues and they are ultimately prepared for all of the issues in these cases,” said Texas State Bar Executive Director Trey Apffel. “You can tell that they take this very seriously. They take it to heart, and they approach their job with such integrity. It’s an easy choice to call upon them time and again.”

“They’ve become our most trusted counsel on constitutional matters,” added John Sirman, the Bar’s associate executive director. “Whenever there’s something that comes up related to a constitutional matter, it’s always ‘what does Tom think?’”

Ensuring diverse leadership at the Bar

The relationship dates back to December 2016, when Leatherbury received a phone call from one of his oldest friends, Frank Stevenson, who was then serving as president of the State Bar of Texas. Greg Gegenheimer, a white attorney, had sued the Bar seeking to end the practice of reserving four of the Bar’s board positions for women and minorities, asserting that the policy was discriminatory and unconstitutional. V&E agreed to take the case.

Around the same time, Texas State Senator Kirk Watson introduced legislation that would amend the Bar’s practice of setting aside board seats for minority directors. The legislation established four “at-large” directors to be appointed by the Bar’s president.

While the legislation states that the at-large board members can be of any race or gender, the lawyers should “demonstrate knowledge gained from experience in the legal profession and community necessary to ensure the board represents the interests of attorneys from the varied backgrounds.”

The upshot: The legislation provided the State Bar of Texas the flexibility to diversify its leadership. With the new law in place, the court declared the Gegenheimer lawsuit moot.

“Having the law changed in a way that the State Bar could live with, and then getting the case dismissed so that the State Bar didn’t incur any attorney’s fees, that was a big success,” said V&E counsel Josh Johnson.

The battle to preserve a mandatory bar

That positive result would lead to more work for V&E. Emboldened by the United States Supreme Court’s 2018 ruling in Janus v. AFSCME, which held that public sector non-union workers cannot be required to pay union fees as a condition of employment, members of state bars across the country began filing lawsuits objecting to mandatory bar membership.

When McDonald, Hammer and Pulliam sued the State Bar of Texas along these lines last year, the Bar once again turned to V&E.

This past May, Judge Yeakel dismissed the lawsuit. In an 18-page opinion, he sided with V&E’s arguments, stating, “Because the Bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory Bar membership and compulsory fees do not otherwise violate the First Amendment, Plaintiffs’ claim that the Bar unconstitutionally coerces them into funding allegedly non-chargeable activities without a meaningful opportunity to object necessarily fails as a matter of law.”

But the battle isn’t over yet. The plaintiffs have filed an appeal in the United States Court of Appeals for the Fifth Circuit. The V&E team is representing the Bar in the appeal.

“This is a very important case that is challenging the existence of the Bar in its current form,” Sirman said. “We feel very lucky that we have this team representing our interests.”

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.