1889 Institute: OK Bar Association lawsuit exposes issues beyond just free speech

ISSUES WITH ATTORNEY LICENSING BIGGER THAN SCHELL v. WILLIAMS

The problems go beyond violations of free speech

OKLAHOMA CITY, OK (March 29, 2019) – In its February 2019 report, “The Oklahoma Supreme Court’s Unchecked Abuse of Power in Attorney Regulation,” the 1889 Institute brought up the free speech issue over which Mark Schell, a Tulsa attorney, is suing the Oklahoma Bar Association. The lawsuit, and 1889’s report, argue that requiring attorneys to be members of, and pay mandatory dues to, the Oklahoma Bar Association violates the First Amendment. These requirements amount to forced speech since the Association uses part of the dues to advocate political positions many attorneys find personally objectionable.

The 1889 Institute’s report identifies another highly important issue not being litigated, but that should be urgently addressed. As described in the publication, the Oklahoma Supreme Court has violated the fundamental constitutional principle of the separation of powers. It did so by commandeering legislative and executive powers, declaring for itself sole power to authorize and administer attorney licensing in Oklahoma. In so doing, the Oklahoma Supreme Court declared it had the power to control all aspects of the practice of law in Oklahoma, not just practice before Oklahoma’s state courts. The other two branches did nothing to protect their usurped constitutional powers.

“My hope is that this lawsuit will spark a wider discussion and ultimately, more extensive reform in both how Oklahoma regulates attorneys and in how we select our judges,” said Ben Lepak, Legal Fellow at the 1889 Institute. “Judges and attorneys in Oklahoma are part of a system of regulation that violates the Oklahoma and U.S. Constitutions, undermining the Rule of Law,” he said.

“The federal lawsuit is attempting to tackle one narrow aspect of the problem,” said Lepak. “That is a positive development, but far more fundamental reform is needed. If the state Supreme Court won’t act on its own to remedy these constitutional violations, the state legislature and governor should re-assert their authority and override the Court.”


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 publication, “The Oklahoma Supreme Court’s Unchecked Abuse of Power in Attorney Regulation” can be found on the nonprofit’s website at http://www.1889institute.org/licensing.