Thursday, January 02, 2020

1889 Institute files amicus brief in US Supreme Court over state bar associations and political speech

Oklahoma Bar Association tramples first amendment rights of state’s attorneys

OKLAHOMA CITY, OK (January 2, 2019) – The 1889 Institute, an Oklahoma state policy think tank, has filed an amicus brief in the United States Supreme Court. The amicus (friend of the court) brief asks the court to review the case of a North Dakota attorney who has been forced to fund political causes he opposes through mandatory membership in the state bar association. This also occurs in Oklahoma, where attorneys are forced, by law, to join the Oklahoma Bar Association if they wish to practice in the state.

“The Oklahoma Bar Association uses its members’ money for political and ideological advocacy, not just to make sure lawyers are qualified and behave ethically.” said Ben Lepak, Legal Fellow at the 1889 Institute and author of the brief. “That violates lawyers’ First Amendment right to freedom of association and their right to choose what political speech they will and will not support with their money.”

Lepak went on to say, “And it’s totally unnecessary. In 18 states, attorneys aren’t forced to join a bar association or pay money to a bar association to practice law, but the state still regulates attorneys, and attorneys still pay for the cost of that regulation.”

1889 Institute’s brief argues that the case of Fleck v. Wetch has national reach, so the court should do far more than merely correct one bad decision of a lower court. The brief highlights the political activity of the Oklahoma Bar Association, which the brief argues is representative of political activity by mandatory associations in 30 other states. The Supreme Court reviews only a small fraction of the cases it is asked to hear.

A similar lawsuit was filed against the Oklahoma Bar Association in March 2019 by a Tulsa attorney who has accused the OBA of using his mandatory dues to fund political activity. That case is pending in federal court in Oklahoma City. If the nation’s Supreme Court takes the North Dakota case, attorneys nationwide, including Oklahoma attorneys, might see their First Amendment rights vindicated.”

The 1889 Institute has critiqued the OBA’s compulsory membership. It has also criticized the privileged status the OBA holds in selecting state judges. Publications include “The Oklahoma Supreme Court’s Unchecked Abuse of Power in Attorney Regulation,” “Legislators in Black Robes: Unelected Lawmaking by the Oklahoma Supreme Court,” and “Taming Judicial Overreach: 12 Actions the Legislature Can Take Immediately.”

About the 1889 Institute
The 1889 Institute is an Oklahoma think tank committed to independent, principled state policy fostering limited and responsible government, free enterprise and a robust civil society. The Fleck Brief, and other reports on licensing can be found on the nonprofit’s website at Reports on the Oklahoma judicial system are available at


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