Amicus Curiae Brief — Tony K. McDonald, et al., Petitioners v. Sylvia Borunda Firth, et al.

Supreme Court briefJan 19, 2022

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No. 21-800

IN THE

___________

TONY K. MCDONALD, ET AL.,

PETITIONERS,

SYLVIA BORUNDA FIRTH, ET AL.,

RESPONDENTS.

___________

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Fifth Circuit

__________

BRIEF OF THE LIBERTY JUSTICE CENTER AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

__________

January 19, 2022

Daniel R. Suhr

Counsel of Record

Reilly Stephens

LIBERTY JUSTICE CENTER

141 W. Jackson Blvd., Ste. 1065

Chicago, IL 60604

(312) 637-2280

dsuhr@libertyjusticecenter.org

QUESTION PRESENTED

Does the First Amendment prohibit a state from

compelling attorneys to join and fund a state bar

association that engages in extensive political and

ideological activities?

TABLE OF CONTENTS

QUESTION PRESENTED ............................................. i

TABLE OF AUTHORITIES ........................................iii

INTERESTS OF THE AMICI ...................................... 1

SUMMARY OF ARGUMENT

& INTRODUCTION ............................................... 1

ARGUMENT ............................................................... 2

I. States have a compelling interest in the formal regulation of professional legal ethics... ........................... 2

II. The Court should clarify that states do not have a

compelling interest in a mandatory bar to propose ethical codes for the profession ......................................... 5

III. The Court should clarify that “improving the quality of legal services” is not a compelling state interest

that can be narrowly tailored to justify a mandatory

bar ................................................................................ 9

IV. This case provides a clean, simple vehicle to make

these clarifications ..................................................... 15

CONCLUSION ................................................................ 18

iii

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education, 431 U. S. 209

(1977) ........................................................................ 3

Board of Regents v. Southworth, 529 U.S. 217 (2000)

................................................................................ 14

Engel v. Vitale, 370 U.S. 421 (1962).......................... 13

Greenberg v. Haggerty, 491 F. Supp. 3d 12 (E.D. Pa.

2020) ......................................................................... 6

Harris v. Quinn 573 U.S. 616 (2014) ...................... 3, 4

Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203

(1948) ...................................................................... 13

Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018)

.................................................................... 1, 2, 6, 12

Keller v. State Bar of California 496 U.S. 1 (1990) .... 2

Lathrop v. Donohue, 367 U.S. 820, (1961) ........ 2, 3, 13

N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S.

494 (2015) ................................................................. 2

Roberts v. United States Jaycees, 468 U.S. 609 (1984)

.................................................................................. 1

Wallace v. Jaffree, 472 U.S. 38 (1985)....................... 13

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) .... 2

Other Authorities

“About the Bar,” Virginia State Bar,

https://www.vsb.org/site/about ................................ 5

“Climate Change Resources,” State Bar of Wis.

https://www.wisbar.org/NewsPublications/Wisconsi

nLawyer/Pages/article.aspx?Volume=82&Issue=3&Articl

eID=1688. ............................................................... 11

“Green Pro Bono – Helping Provide Solutions to

Climate Change,” Oregon State Bar

https://sustainablefuture.osbar.org/sectionnewsletter/20114winter2reiner/. ........................... 10

“Issues Facing Transgender Clients: Lawyers, Book

Authors Provide Insight,” State Bar of Wis. (Sep. 5,

2018)

https://www.wisbar.org/NewsPublications/InsideTr

ack/Pages/article.aspx?Volume=10&Issue=15&Arti

cleID=26546 ............................................................ 11

“Lesson 5: Establishment Clause,” Okla. Bar Asso.

https://nie.newsok.com/wp-content/uploads/LawDay-Lesson-5-1.pdf................................................. 12

“Responses to State Bar of New Mexico

Multijurisdictional Practice Survey,” State Bar of

N.M. (Oct. 2001) ....................................................... 7

“Sexual Orientation, Gender Identity, and the Law”

(PINNACLE 2018) ................................................. 11

“State Bar Board of Governors opposes petition to

amend or repeal diploma privilege, among other

actions,” State Bar of Wis. (Sept. 27, 2010)

https://www.wisbar.org/NewsPublications/InsideTr

ack/Pages/Article.aspx?Volume=0&Issue=0&Article

ID=6161 .................................................................... 8

“Viewing Guide for Engel v. Vitale (1962) Teacher

Notes,” Texas State Bar

https://www.texasbar.com/civics/viewingguides/High%20School/Engel-v-Vitale/TeacherNotes.pdf. ................................................................ 12

Carlos R. Soltero & Kayla Carrick Kelly, Gaslighting:

Should It Be Recognized as a Tort in Texas?, 84

Tex. B.J. 584 (2021)................................................ 16

Daniel R. Suhr, The Religious Liberty of Judges, 20

WM. & MARY BILL OF RTS. J. 179, 209-10 (2011) ..... 7

Ed Finkel, “6 Big Ideas: 2018 Wisconsin Legal

Innovators,” Wis. Law. (Nov. 7, 2018)

https://www.wisbar.org/newspublications/wisconsin

lawyer/pages/article.aspx?volume=91&issue=10&ar

ticleid=26663 .......................................................... 12

Eugene Volokh, “A speech code for lawyers, banning

viewpoints that express ‘bias,’ including in lawrelated social activities,” The Volokh Conspiracy

(Aug. 10, 2016)

https://www.washingtonpost.com/news/volokhconspiracy/wp/2016/08/10/a-speech-code-forlawyers-banning-viewpoints-that-express-biasincluding-in-law-related-social-activities-2/............ 6

George W. Dent, Jr., “Model Rule 8.4(g): Blatantly

Unconstitutional and Blatantly Political” Faculty

Publications 2012 (2017)

https://scholarlycommons.law.case.edu/faculty_publ

ications/2012 ............................................................. 6

Hon. Dennis Jacobs, “Pro Bono for Fun and Profit,”

Speech to the Rochester Lawyers Chapter of the

Federalist Society (Oct. 6, 2008)

https://fedsoc.org/commentary/publications/speechby-judge-dennis-g-jacobs ........................................ 10

Joe Forward, “Phyllis Frye: The Grandmother of the

Transgender Rights Movement,” State Bar of Wis.

(July 17, 2019)

https://www.wisbar.org/NewsPublications/Pages/Ge

neral-Article.aspx?ArticleID=27122 ...................... 12

Johnathan A. Mondel, Note, Mentally Awake, Morally

Straight, and Unfit to Sit?: Judicial Ethics, the

First Amendment, and the Boy Scouts of America,

68 STAN. L. REV. 865, 871-72 (2016) ........................ 7

Josh Blackman, Reply: A Pause for State Courts

Considering Model Rule 8.4(g), 30 GEO. J. LEGAL

ETHICS x (2017) ........................................................ 6

La. Atty. Gen. Op. 17-0114 (Sep. 8, 2017) .................. 6

Letter from Kevin Clarkson, Alaska Atty. Gen., to

Alaska Bar Asso. (Aug. 9, 2019) .............................. 6

Letter from Robert Cook, S.C. Solicitor Gen., to State

Rep. John R. McCravy, III (May 1, 2017)................ 6

Lindsey Ker, Lawyers Lack Liberty: State

Codifications of Comment 3 of Rule 8.4 Impinge on

Lawyers’ First Amendment Rights, 28 GEO. J.

LEGAL ETHICS 629 (2015) ......................................... 5

Lowell Brown, CLE Courses on Bias, Attorney WellBeing to Qualify for Ethics Credit: Board Approves

MCLE Accreditation Changes, New Workgroup on

Lawyer Needs, 84 Tex. B.J. 504 (2021).................. 16

Neil J. Wertlieb, “The disruptive and controversial

new rules,” (Calif.) Daily J. (Oct. 17, 2018)

https://www.dailyjournal.com/articles/347613-thedisruptive-and-controversial-new-rules. ................. 8

Raymond J. McCoski, JUDGES IN STREET CLOTHES:

ACTING ETHICALLY OFF-THE-BENCH 101-03

(Fairleigh Dickinson U. Press 2017) ....................... 7

Richard Kammen, “Spotlight CLE: Nine Years in the

Guantanamo Goo,” Kentucky Bar Asso. Annual

Conv. (June 13, 2018)

https://cdn.ymaws.com/www.kybar.org/resource/res

mgr/2018_convention/materials/guantanamo.pdf .. 9

Richard W. Garnett, Whom Should a Catholic

University Honor?: “Speaking” with Integrity, 49 J.

Cath. Legal Stud. 233 (2010) ................................. 14

Ronald Rotunda, “The ABA Decision to Control What

Lawyers Say,” Heritage Foundation (Oct. 6, 2016),

https://www.heritage.org/report/the-aba-decisioncontrol-what-lawyers-say-supporting-diversity-notdiversity-thought ...................................................... 6

Sofia Adrogué The Business Case For Diversity,

Equity, And Inclusion, 81 Tex. B.J. 586 (2021) .... 16

Sylvia Borunda Firth, Achieving a Truly Equal

Outcome, 84 TEX. B.J. 956 (2021)......................... 17

Sylvia Borunda Firth, Diversity as a Driver of

Business Success, 84 Tex. B.J. 796 (2021) ............. 17

vii

Sylvia Borunda Firth, Diversity without Inclusion Is

a Recipe for Failure, 84 Tex. B.J. 688 (2021) ........ 16

Sylvia Borunda Firth, Take a R.I.D.E. with Me, 84

Tex. B.J. 576 (2021)................................................ 16

Tenn. Atty. Gen. Op. 18-11 (March 16, 2018)............. 6

Texas Atty. Gen. Op. KP-0123 (Dec. 20, 2016) ........... 6

Tim Eigo, “Climate Change One Focus in New

Arizona Attorney Magazine,” Arizona State Bar

(Oct 13, 2010)

https://www.azbar.org/newsevents/newsreleases/20

10/10/climatechangeonefocusinnewarizonaattorney

magazine................................................................. 11

Rules

ABA Code of Professional Responsibility Model Rule

8.4(g) ......................................................................... 5

INTERESTS OF THE AMICUS CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan,

public-interest litigation firm that seeks to protect economic liberty, private property rights, free speech, and

other fundamental rights. The Liberty Justice Center

pursues its goals through strategic, precedent-setting

litigation to revitalize constitutional restraints on government power and protections for individual rights.

The Liberty Justice Center (LJC) is particularly interested in this case because of its respect for the freedoms of speech and association. LJC represented Mark

Janus in Janus v. AFSCME Council 31, 138 S. Ct.

2448 (2018), which provides the framework for many

of the arguments in this case. LJC also represents the

plaintiff in a challenge to Wisconsin’s mandatory bar

currently pending before the U.S. Court of Appeals for

the Seventh Circuit. File v. Kastner, et al., No. 20-2387

(7th Cir.).

SUMMARY OF ARGUMENT

AND INTRODUCTION

The First Amendment includes both the freedom to associate and the freedom not to associate. Roberts v.

United States Jaycees, 468 U.S. 609, 623 (1984). A

state-imposed mandate requiring an individual to associate with a private organization must pass exacting

1 Rule 37 statement: No counsel for any party authored

any part of this brief, and no person or entity other

than amici funded its preparation or submission.

Counsel timely provided notice to all parties of their

intention to file this brief, and counsel for each party

consented.

scrutiny, Janus v. AFSCME, Council 31, 138 S. Ct.

2448, 2483 (2018), which requires a compelling state

interest and narrow tailoring. Williams-Yulee v. Fla.

Bar, 135 S. Ct. 1656, 1664 (2015).

The Court in Keller v. State Bar of California did not

clearly identify a standard of review but referred to the

state’s two interests in a mandatory bar: “regulating

the legal profession and improving the quality of legal

services.” 496 U.S. 1, 13 (1990). In doing so, it drew on

the Court’s previous plurality opinion in Lathrop v.

Donohue, which identified the state’s “legitimate interests” in a mandatory bar as “elevating the educational

and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State.” 367 U.S. 820, 843 (1961).

The Supreme Court should take this case to clarify

that the only state interest sufficiently compelling to

justify a mandatory bar association is the formal regulation of lawyers’ professional conduct.

ARGUMENT

States have a compelling interest in the

formal regulation of professional legal ethics.

States have a compelling interest in ensuring the ethical practice of important professions in our society.

See N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S.

494, 512-13 (2015). This is as true for lawyers as it is

for doctors, accountants, and other professionals.

Lathrop was the Court’s first case on mandatory bar

association, and it gave a broad conception of the bar’s

legitimate role. It considered the bar’s role in the formal regulation of lawyers’ professional conduct and in

combatting the unauthorized practice of law. 367 U.S.

at 840-41. In the same breath, it also classified as acceptable the bar’s continuing legal education activities, legal aid committee, and public outreach. Id. It

characterized all of these undertakings as “activities

without apparent political coloration.” Id. at 839.

Keller formalized the Lathrop plurality’s longwinded

discussion of state interests down to a simple sentence

identifying two interests: “regulating the legal profession and improving the quality of legal services.” 496

U.S. at 13. Keller later put greater flesh on the first

interest by describing it as “activities connected with

disciplining members of the bar or proposing ethical

codes for the profession.” Id. at 26-27.

The Court’s discussion of Keller in Harris v. Quinn put

the emphasis squarely on the bar’s role in ethical regulation as the justification for its interest. 573 U.S.

616, 655 (2014). There, the Court’s majority explained

why its holding limiting the application of Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was distinguished from its prior holding in Keller. The Court

described Keller’s holding: “We held that members of

this bar could not be required to pay the portion of bar

dues used for political or ideological purposes but that

they could be required to pay the portion of the dues

used for activities connected with proposing ethical

codes and disciplining bar members.” Harris, 573 U.S.

at 655. The Court continued:

Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory

scheme. The portion of the rule that we upheld

served the “State’s interest in regulating the

legal profession and improving the quality of

legal services.” Ibid. States also have a strong

interest in allocating to the members of the

bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.

Harris, 573 U.S. at 655-56.

Harris’ emphasis on the “detailed ethics rules” and

“regulatory scheme” charts the path for this Court in

this case. Some states may choose to characterize the

regulatory authority which enforces these rules as a

mandatory bar. See, e.g., About the Bar, Virginia State

Bar, https://www.vsb.org/site/about. As long as it limits its activities to the formal regulation of legal ethics,

such an approach is narrowly tailored to meet a compelling state interest, and there is no need to overrule

this holding of Keller.2

2 A state bar that regulates ethics but also engages in

trade association-type activities is not narrowly tailored to such an interest.

II.

The Court should clarify that states do not

have a compelling interest in a mandatory

bar to propose ethical codes for the profession.

When discussing the mandatory bar’s role in maintaining professional standards, Keller permitted “activities connected with disciplining members of the bar

or proposing ethical codes for the profession.” 496 U.S.

at 26-27. “Proposing ethical codes for the profession” is

a different function from enforcing those codes, and

one much more fraught with problematic politics.

Janus counsels against forcing someone to associate

with an organization that takes positions on “controversial public issues.” 138 S. Ct. at 2464. Bar associations frequently take controversial positions by seeking to incorporate politically correct social expectations into professional conduct codes.

Consider, for instance, the move by many bar associations to adopt the amended ABA Model Rule 8.4(g),

which would prohibit lawyers from “engag[ing] in conduct that the lawyer knows or reasonably should know

is harassment or discrimination on the basis of race,

sex, religion, national origin, ethnicity, disability, age,

sexual orientation, gender identity, marital status or

socioeconomic status in conduct related to the practice

of law.” ABA Code of Professional Responsibility

Model Rule 8.4(g). Numerous scholars have raised concerns about the model rule’s constitutionality and effect on lawyers’ religious liberty and free-speech

rights. See, e.g., Lindsey Ker, Lawyers Lack Liberty:

State Codifications of Comment 3 of Rule 8.4 Impinge

on Lawyers’ First Amendment Rights, 28 Geo. J. Legal

Ethics 629 (2015); Eugene Volokh, A speech code for

lawyers, banning viewpoints that express ‘bias,’ including in law-related social activities, The Volokh Conspiracy (Aug. 10, 2016);3 Ronald Rotunda, The ABA

Decision to Control What Lawyers Say, Heritage Foundation (Oct. 6, 2016);4 Josh Blackman, Reply: A Pause

for State Courts Considering Model Rule 8.4(g), 30

Geo. J. Legal Ethics x (2017); George W. Dent, Jr.,

Model Rule 8.4(g): Blatantly Unconstitutional and

Blatantly Political, Faculty Publications 2012 (2017).5

No fewer than five state attorneys general have opined

that the proposed rule suffers severe constitutional defects. Texas Atty. Gen. Op. KP-0123 (Dec. 20, 2016);

Letter from Robert Cook, S.C. Solicitor Gen., to State

Rep. John R. McCravy, III (May 1, 2017); La. Atty.

Gen. Op. 17-0114 (Sep. 8, 2017); Tenn. Atty. Gen. Op.

18-11 (Mar. 16, 2018); Letter from Kevin Clarkson,

Alaska Atty. Gen., to Alaska Bar Ass’n (Aug. 9, 2019).

And when Pennsylvania implemented its version of

the model rule, a federal court found that it did indeed

violate the First Amendment. Greenberg v. Haggerty,

491 F. Supp. 3d 12, 33 (E.D. Pa. 2020).

3 https://www.washingtonpost.com/news/volokh-con-

spiracy/wp/2016/08/10/a-speech-code-for-lawyers-banning-viewpoints-that-express-bias-including-in-lawrelated-social-activities-2/.

4 https://www.heritage.org/report/the-aba-decisioncontrol-what-lawyers-say-supporting-diversity-not-diversity-thought.

5 https://scholarlycommons.law.case.edu/faculty_publications/2012.

The same concerns can arise regarding amendments

to a code of judicial ethics. In 2003, several bar associations successfully petitioned the California Supreme

Court to adopt a comment to a canon on judicial disqualification that would have prompted recusal by

judges who were volunteer leaders in the Boy Scouts

of America, given the BSA’s then-policy on sexuality.

Daniel R. Suhr, The Religious Liberty of Judges, 20

Wm. & Mary Bill of Rts. J. 179, 209-10 (2011). Twelve

years later, the California Supreme Court formally

adopted an amendment to the code itself barring membership in youth organizations that discriminate and

sent a letter to all judges that they must cease affiliation with the Boy Scouts as of January 1, 2016. Raymond J. McCoski, Judges in Street Clothes: Acting

Ethically Off-the-Bench 101-03 (Fairleigh Dickinson

U. Press 2017). The rules change sparked substantial

controversy among judges and the media. Johnathan

A. Mondel, Note, Mentally Awake, Morally Straight,

and Unfit to Sit?: Judicial Ethics, the First Amendment, and the Boy Scouts of America, 68 STAN. L. REV.

865, 871-72 (2016). Though the initial change was

sought by voluntary local bar associations, it illustrates that even rules petitions can get caught up in

controversial social issues.

Many other rules petitions that do not touch on culture

war issues may nevertheless provoke substantial controversy within the bar. Rules petitions may favor one

type of practice over another, such as a rule expanding

license flexibility for out-of-state lawyers working as

in-house counsel. See Responses to State Bar of New

Mexico Multijurisdictional Practice Survey, State Bar

of N.M. (Oct. 2001). They may suggest changes to

standards for attorney-client sexual relationships,

which some lawyers may perceive as an invasion of

privacy. Neil J. Wertlieb, The disruptive and controversial new rules, (Calif.) Daily J. (Oct. 17, 2018).6

They may pit graduates of in-state law schools against

those who went to law schools in other states. State

Bar Board of Governors opposes petition to amend or

repeal diploma privilege, among other actions, State

Bar of Wis. (Sept. 27, 2010).7 In any number of scenarios, proposing amendments to a state’s ethical code

may put a state bar on one side of a controversial or

sensitive issue within the profession or the broader

culture.

Moreover, a mandatory bar is not a narrowly tailored

solution to the need for occasional updates to the rules

of professional conduct. The ABA, which is often the

progenitor of changes to state codes based on changes

to its model code, is a voluntary bar, after all. And

many other actors also bring rules petitions, including

state agencies, public-interest groups, specialty or local bar associations, and individual attorneys, or state

high courts may act on their own volition, either directly or by the creation of study committees. Thus,

there is no unique need for a mandatory bar to ensure

that a state’s professional code is kept current. All the

better, then, to clarify that proposing ethical codes is a

different task entirely than enforcing ethical codes,

and that the state only has a compelling interest in the

latter.

6 https://www.dailyjournal.com/articles/347613-the-

disruptive-and-controversial-new-rules.

7 https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=0&Issue=0&ArticleID=6161.

III.

The Court should clarify that “improving

the quality of legal services” is not a compelling state interest that can be narrowly

tailored to justify a mandatory bar.

The other interest identified in Keller, “improving the

quality of legal services,” suffers from the same fundamental defect that the majority critiqued in Janus:

“That formulation is broad enough to encompass just

about anything that the [bar] might choose to do.” 138

S. Ct. at 2481. The “quality of legal services” is a loophole so large that mandatory bars drive truckloads of

politically charged ideology right through it.

The Lathrop plurality identifies the bar’s “many . . .

activities without apparent political coloration”—continuing legal education, the promotion of pro bono legal aid work, and the preparation and distribution of

pamphlets that assist the general public with basic legal questions. 367 U.S. at 839-41.

In reality, though, each of these three activities, and

many others besides that may qualify as “improving

the quality of legal services,” is a platform for State

Bar insiders to use mandatory dues dollars to promote

their political agenda. A continuing legal education

panel may focus on criticizing lawful terrorist detention policies at Guantanamo Bay. See, e.g., Richard

Kammen, Spotlight CLE: Nine Years in the Guantanamo Goo, Ky. Bar Ass’n Annual Conv. (June 13,

2018).8 A pro bono program may facilitate funneling

8 https://cdn.ymaws.com/www.kybar.org/re-

source/resmgr/2018_convention/materials/guantanamo.pdf.

lawyers into social causes, such as the fight against climate change. See, e.g., Green Pro Bono – Helping Provide Solutions to Climate Change, Or. State Bar.9 See

generally Hon. Dennis Jacobs, Pro Bono for Fun and

Profit, Speech to the Rochester Lawyers Chapter of the

Federalist Society (Oct. 6, 2008)10 (“Whether a goal is

pro bono publico or anti, is often a policy and political

judgment. No public good is good for everybody. Much

public interest litigation, often accurately classified as

impact litigation, is purely political, and transcends

the interest of the named plaintiffs, who are not clients

in any ordinary sense.”). A pamphlet for the general

public on ordinary legal issues like divorce, landlordtenant law, or bankruptcy may pass off as “the law”

propositions that many lawyers would find contestable

or problematic.

Consider the list of topics about which unions speak

identified in Janus: “controversial subjects such as climate change, the Confederacy, sexual orientation and

gender identity, evolution, and minority religions.

These are sensitive political topics, and they are undoubtedly matters of profound value and concern to

the public.” Id. at 2476. Ticking down the list, one can

easily find examples of almost every single topic where

mandatory bars are using dues to pay for speech on

these same issues.

9 https://sustainablefuture.osbar.org/section-newslet-

ter/20114winter2reiner/.

10 https://fedsoc.org/commentary/publications/speechby-judge-dennis-g-jacobs.

Climate change: The Arizona State Bar’s monthly

magazine has an “Earthwise Lawyering” regular feature that “examines innovative trends in environmentally friendly law policy and practice.” Tim Eigo, Climate Change One Focus in New Arizona Attorney Magazine, Ariz. State Bar (Oct. 13, 2010).11 The inaugural

edition of the feature “published two articles on the effect of climate change on policy and law practice.” Id.

The State Bar of Wisconsin’s website offers a “Climate

Change Resources” page that includes links to numerous advocacy organizations with specific viewpoints on

climate change. Climate Change Resources, State Bar

of Wis.12 And as noted above, the Oregon State Bar

funnels its members into “Green Pro Bono” fighting climate change. Green Pro Bono – Helping Provide Solutions to Climate Change, Or. State Bar.13

Sexual orientation and gender identity: The State Bar

of Wisconsin recently published a book, “Sexual Orientation, Gender Identity, and the Law” (PINNACLE

2018). Issues Facing Transgender Clients: Lawyers,

Book Authors Provide Insight, State Bar of Wis. (Sep.

5, 2018).14 The State Bar described the coauthors as

11 https://www.azbar.org/newsevents/news-

releases/2010/10/climatechangeonefocusinnewarizonaattorneymagazine/.

12 https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/article.aspx?Volume=82&Issue=3&ArticleID=1688.

13 https://sustainablefuture.osbar.org/section-newsletter/20114winter2reiner/.

14 https://www.wisbar.org/NewsPublications/InsideTrack/Pages/article.aspx?Volume=10&Issue=15&ArticleID=26546.

“[Abby] Churchill, an attorney and longtime LGBTQ

community advocate, and Nick Fairweather, a labor

and employment attorney who works on transgender

issues.” Id. The State Bar also produced a video series

to accompany the book featuring the two attorneys. Id.

Later that same year, the State Bar gave Churchill its

Legal Innovators Award for founding TransLaw Help

Wisconsin. Ed Finkel, 6 Big Ideas: 2018 Wisconsin Legal Innovators, Wis. Law. (Nov. 7, 2018).15 More recently, the State Bar invited “the ‘grandmother’ of the

transgender civil rights movement” to deliver a keynote address that “sheds light on the decades-long

struggle” before a State Bar conference. Joe Forward,

Phyllis Frye: The Grandmother of the Transgender

Rights Movement, State Bar of Wis. (July 17, 2019).16

Religion: The Oklahoma Bar Association and Texas

State Bar both offer educational curricula for teachers

to use concerning, among other topics, the First

Amendment’s religion clauses. Lesson 5: Establishment Clause, Okla. Bar Ass’n;17 Viewing Guide for Engel v. Vitale (1962) Teacher Notes, Tex. State Bar.18

Both bars’ curricula emphasize the “wall of separation” metaphor that has been criticized by members of

15 https://www.wisbar.org/newspublications/wiscon-

sinlawyer/pages/article.aspx?volume=91&issue=10&articleid=26663.

16 https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=27122.

17 https://nie.newsok.com/wp-content/uploads/LawDay-Lesson-5-1.pdf.

18 https://www.texasbar.com/civics/viewingguides/High%20School/Engel-v-Vitale/TeacherNotes.pdf.

this Court. Compare id. with Ill. ex rel. McCollum v.

Bd. of Educ., 333 U.S. 203, 247 (1948) (Reed, J., dissenting) (“[T]he ‘wall of separation between church

and State’ that Mr. Jefferson built at the University

which he founded did not exclude religious education

from that school. . . . A rule of law should not be drawn

from a figure of speech.”); Engel v. Vitale, 370 U.S. 421,

445-46 (1962) (Stewart, J., dissenting) (“[T]he Court’s

task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase

nowhere to be found in the Constitution.”); Wallace v.

Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist J., dissenting) (“The ‘wall of separation between church and

State’ is a metaphor based on bad history, a metaphor

which has proved useless as a guide to judging. It

should be frankly and explicitly abandoned.”). This is

not to say one view of the Establishment Clause is

right or wrong, only that it is a contested point that is

nevertheless being propagated with mandatory dues.

In all these instances—climate change, sexual orientation and gender identity, and the religion clauses—by

the articles and books they publish, the speakers they

highlight, the awardees they honor, these mandatory

bars speak on controversial subjects. The speech of the

presenters, writers, honorees, and curricula may be

right or wrong on any of those issues, but it is speech

all the same. “To suggest that speech on such matters

is not of great public concern—or that it is not directed

at the ‘public square’—is to deny reality.” Janus, 138

S. Ct. at 2475 (internal quotation omitted).

The bar associations may object that they are not

“speaking” when they publish an article or host a

presentation, but they are merely a neutral forum for

the discussion of ideas, a nonpartisan facilitator of legal discourse. This conception of their activities fails

on three counts.

First, these mandatory bars’ educational activities

hardly meet the standard of “viewpoint neutrality” set

for the use of mandatory fees in Board of Regents v.

Southworth, 529 U.S. 217, 230 (2000). There is no “Climate Change Skeptics Resources” page on the State

Bar of Wisconsin’s website. Second, when a bar association presents awards, it is definitely speaking—it is

lifting up certain individuals or causes as worthy of

emulation, honor, and praise. See Richard W. Garnett,

Whom Should a Catholic University Honor?: “Speaking” with Integrity, 49 J. Cath. Legal Stud. 233 (2010).

Third, when a bar association hosts CLE presentations

or sponsors books, it confers its powerful imprimatur

onto them, especially when the bar positions a presentation or book as a definitive, authoritative statement

of the law, much like a restatement. It defies belief to

think that you are going to get the exact same restatement on the law of sexual orientation and gender identity if it is written by the founder of TransLaw rather

than the lawyer for the Family Council.

In short, mandatory bars do speak, regularly and institutionally, about controversial subjects and issues

of public concern. It is impossible to neatly segregate

advocacy on the one side and everything else on the

other and provide a Keller deduction of dues used only

for lobbying the legislature. A state bar’s educational

activities, its events, its awards, its magazine, and virtually everything it does to talk about the law addresses issues of substantial public concern. This will

continue so long as individual lawyers bring their professional experiences, personal backgrounds, and ideological and jurisprudential beliefs to their view of the

law.

This is not a compelling state interest, nor is it narrowly tailored. There are innumerable speakers in the

world about “the law” in all its facets. There are thousands of sponsors for continuing legal education, from

for-profit companies to law schools, law firms, and voluntary bar associations. There are numerous organizations dedicated to promoting pro bono work and civic

education. These endeavors can all continue in their

good works without the need for the government to coerce attorneys into belonging to a mandatory bar.

IV.

This case provides an excellent vehicle for

this Court to clarify the law.

In this case, the State Bar of Texas demonstrates precisely the pitfalls of mandating membership in an organization that functions as an advocacy group and

trade association. The Petitioners reference numerous

instances of the Bar taking political sides. Pet. at 9-13.

These include legislative lobbying, use of mandatory

funds for legal services, and funding ideological programming. Id. Petitioners’ examples are compelling,

but only scratch the surface. Even as this litigation has

moved forward, the examples of the Texas State Bar’s

ideological advocacy have piled up over the past year.

For instance, in April of last year the State Bar’s Board

of Directors unanimously voted to amend the CLE accreditation standards to add courses on “implicit and

explicit bias.” Lowell Brown, CLE Courses on Bias, Attorney Well-Being to Qualify for Ethics Credit: Board

Approves MCLE Accreditation Changes, New

Workgroup on Lawyer Needs, 84 Tex. B.J. 504 (2021).

The Board left these as optional for now but agreed to

actively study whether to make this sort of ideological

content mandatory. Id.

The July/August 2021 issue of the Texas Bar Journal

opened with the Bar President instructing her readership to “come along for the R.I.D.E. as we focus on Respect, Inclusion, Diversity, and Equity within our bar.”

Sylvia Borunda Firth, Take a R.I.D.E. with Me, 84 Tex.

B.J. 576 (2021). The same issue rode along with her,

pressing “The Business Case For Diversity, Equity,

And Inclusion,” arguing that these modern left-wing

buzzwords “are becoming paramount for the U.S. private sector.” Sofia Adrogué, The Business Case For Diversity, Equity, And Inclusion, 81 Tex. B.J. 586 (2021).

Just a few pages away in the same issue, an article

advocated that the contemporary feminist concept of

“Gaslighting” be adopted as an actionable tort. Carlos

R. Soltero & Kayla Carrick Kelly, Gaslighting: Should

It Be Recognized as a Tort in Texas?, 84 Tex. B.J. 584

(2021).

In the following September issue, President Firth

pressed the matter further, commanding the membership that “[i]t’s upon [her], the other bar officers, board

members, section members, and all Texas lawyers to

reach out and extend that offer of inclusion to those

with whom you share similar traits and to those with

whom you don’t.” Sylvia Borunda Firth, Diversity

without Inclusion Is a Recipe for Failure, 84 Tex. B.J.

688 (2021). She returned to the same issue in October.

Sylvia Borunda Firth, Diversity as a Driver of Business

Success, 84 Tex. B.J. 796 (2021). She went further in

December, arguing that America’s longheld value of

equality must be jettisoned in favor of “equity,” a modern buzzword that rejects the idea that citizens should

be treated as individuals entitled to equal opportunities. Sylvia Borunda Firth, Achieving a Truly Equal

Outcome, 84 Tex. B.J. 956 (2021). These are her official

president’s message as leader of the organization, and

they make clear that the state bar of Texas is no neutral arbiter of professional standards.

All this would be perfectly fine in the context of a private membership organization. Yet Texas has decided

instead to mandate participation in this ideological

project. There is no compelling interest in it doing so.

A state need not tie the exercise of regulatory authority to political activism—as demonstrated by all the

states that do not do so.

Even where a state finds it useful to have lawyers engage in self-regulation, there are still opportunities to

bifurcate these regulatory interests from partisan advocacy. For instance, California recently split its unified bar into separate entities. The State Bar of California retained regulatory authority over California

lawyers, while the newly spun-off California Lawyers

Association fulfills the trade-association and advocacygroup roles as a voluntary membership organization—

to what is widely seen as a smashing success. There is

no compelling interest in Texas combining these functions, and no reason why it should be permitted to do

so at the expense of Petitioners’ First Amendment

rights.

CONCLUSION

The Court should grant certiorari to clarify these important points for the good of the profession and the

First Amendment. The Supreme Court should specify

that only the formal regulation of lawyers’ professional

conduct constitutes a state interest sufficiently compelling to justify a mandatory bar association.

Respectfully submitted,