A federal appeals court is set to hear a case that could affect how the Oklahoma Bar Association conducts business and collects dues.
The U.S. Court of Appeals for the Tenth Circuit is scheduled to hear arguments Thursday about whether Tulsa attorney Mark Schell should be required to pay dues to the Oklahoma Bar Association in order to practice law in the state.
In his federal lawsuit against the state bar and the Oklahoma Supreme Court, Schell argues his First Amendment rights are being violated by being required to associate or pay dues to the Oklahoma Bar Association. Schell disagrees with some of the bar association’s political speech, according to the lawsuit.
The Oklahoma Bar Association, which predates statehood, acts as “an arm of the Oklahoma Supreme Court,” and is funded through membership dues and other self-generated revenue. It investigates and prosecutes attorneys “who have committed ethical violations.”
The justices of the Oklahoma Supreme Court are named as a defendant in the 2019 lawsuit only because they ultimately enforce the regulations that require membership to the association.
A spokesperson for the Oklahoma Bar Association declined to comment Wednesday.
Scott Day Freeman, senior attorney with the Phoenix-based Goldwater Institute, which is representing Schell, said Wednesday they are not trying to challenge the regulatory responsibilities of the Oklahoma Bar Association, but want to establish boundaries and guidelines for its conduct unrelated to regulation.
“I think (Schell) would like to not be required to be a member of the bar,” Freeman said. “He, I think, would acknowledge that he could be required to pay dues to fund sort of the regulatory apparatus of the bar, which is really all it should be doing.”
The Oklahoma Bar Association regularly publishes articles that advocate for specific public policy ideas which is “impermissible,” he said. Its members are by default associated with these views and their dues contribute to this activity, he said.
Freeman said the Oklahoma Bar Association’s role should be narrowly focused on its regulatory purpose.
There are many states, like New York, that do not have mandatory bar associations, Freeman said. In New York, attorneys are still regulated through the state Supreme Court and have required fees to fund this, Freeman said.
Other states have seen challenges to their own bar associations, Freeman said, including Oregon, Louisiana, Texas, Utah and Wisconsin.
He said two other federal circuit courts have weighed in on similar issues.
“They’re not all uniform in what they’re saying,” Freeman said. “So ultimately, we may need to get the U.S. Supreme Court to step in and resolve this question.”
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