The Pro Bono Tax
	Background In 2000 the group that sought to impose mandatory pro bono on lawyers by filing the case of Gomez, et al v. The State Bar of Texas, et al, dropped their newly filed case, usually referred to as Gomez II, when the Texas Supreme Court agreed to hold a hearing on the original Gomez case which had been suspended on the Court's administrative docket. The State Bar sent a status report to Texas Supreme Court on January 27, 2000. An Executive Summary of this report can be read at the Supreme Court's web site, here. What is left out of this Executive Summary are (1) a summary, highlighting the testimony given at the Supreme Court's hearing on January 27, 2000 (apparently prepared by the staff of Texas Lawyers Care) and (2) the Access to Justice Work Plan which was considered by the State Bar Board of Directors on April 28, 2000.
	Pro Bono Tax -- Mandatory Pro Bono Comes in the Back Door Every year the candidates for President-Elect of the State Bar say they are against Mandatory Pro Bono and then undercut that position with a comment about the importance of lawyers, as individuals, or the Bar, as an organization, taking responsibility for providing legal services to "the poor." The failure of officers and directors of the State Bar to take an unequivocal position on your right not to have mandatory pro bono imposed on you is an error. It is a chicken that came home to roost in the following way: The 2003 State Bar Act (Texas Government Code 81.001 ff) contains a new provision, Section 81.054j, which taxes lawyers to feed the coffers of the Access to Justice Commission. The actual language is: The supreme court shall set an additional civil legal services fee in an amount that is not less than $65 to be paid annually by each active member of the state bar.The supreme court shall review the amount of the fee at least biennially and may, subject to the requirements of this subsection,modify the amount. The supreme court may not increase the amount of the fee to an amount that exceeds 120 percent of the lowest fee imposed under this subsection during the preceding year.Section 81.024 does not apply to a fee set under this subsection. What had been a voluntary contribution Access to Justice Foundation became mandatory until the Tax sunsets in 2007. Under this statute, the supreme court must tax you $65 and can more than double this tax each year after that. You do not get a chance to vote on this. Is this mandatory pro bono? Of course, it is. It is a tax (a mandatory "fee") to pay for pro bono activities. The sponsor of the bill was Representative Warren Chisum from Pampa. However, both Rep. Chisum's office and the State Bar staff said the proposal came from Rep. Florez. Florez's office indicated that the original advocate for this was Texas Rural Legal Aid. The bill was lobbied for by at least two lobbyists, Anthony Haley and Seth Winick, who are both former employees of Rodney Ellis and who were both paid by Texas Legal Services Center of Austin. The following is taken from this web page. Haley, Anthony 815 Brazos, Ste. 200 Austin, TX 78701 Type of Compensation: Prospective Amount: $25,000 - $49.999.99 Winick, Seth R. 815 Brazos Street, Ste. 200 Austin, TX 78701 Type of Compensation: Prospective Amount: $25,000 - $49.999.99 Termination Date: 6/3/03 Texas Legal Services Center 815 Brazos, Suite 1100 Austin, TX 78701 Type of Compensation: Amount: Less Than $10,000.00 Texas Legal Services Center is part of a consortium of groups who raised the money for the lobbyists. (These are not the only lobbyists who worked against the Bar. One was former Texas Lawyers Care director, Julie Oliver.) This is part a long-range plan by Texas Legal Services Center. Their website is here. If you go there and click on "State Planning" you will find this page, which shows that this tax has been in their plans for at least three years. If you examine the act, you will find that there are certain groups of lawyers that are exempt from paying the tax. Among those are lawyers employed by 501(c)(3) tax exempt organizations. If it occurs to you that Legal Aid lawyers are the originators of a tax on you that they exempted themselves from paying, you might be right. At least one member of the section has responded by notifying his local Legal Aid office (which he used to help a great deal) that they can no longer expect volunteer efforts from him while the tax is in place. The State Bar worked on this. Those listed as testifying concerning the bill and on behalf of the the State Bar were Guy Harrison, Broadus Spivey and Gib Walton. There has apparently been a good deal of work behind the scenes by the State Bar Staff. The Staff believed they had the votes to stop this bill in the Senate but for the threatened filibuster of Sen. Rodney Ellis. To finesse Sen. Ellis's action, which would have held up a lot of bills, a compromise was worked into the Act to sunset this tax in 4 years. With all of this work by the Bar against this provision, why is this chickens coming home to roost? Because the Bar has refused to take a bold stand in principle against mandatory pro bono. At the 2002 Bar convention, the GPSolo section proposed (for the third time) an unequivocal resolution opposing mandatory pro bono. A significant number of State Bar directors and officers (including Guy Harrison, Gib Walton and Betsy Whitaker) voted against our resolution -- again. Why? The reason most often given was so as not to inflame the legislature into imposing mandatory pro bono during a year when the State Bar Act was up for renewal. We don't think the efforts at appeasement worked out all that well.
	Adding Insult to Injury On September 19, 2003, the State Bar Board of Directors met at Lakeway. Among the issues before them was the following: Item 10 "Consider approval of funds for Resource Development Project." This involves a contract between the Access to Justice Commission and a consulting entity known as the Management Information Exchange. The Access to Justice Commission is to pay Management Information Exchange $20,000 to come up with a strategic plan to develop resources for Legal Services. The money will apparently come from State Bar funds. The funds were approved. The question is why: 1. The Access to Justice Commission has its own funds. They were not used on this contract. 2. Legal Services entities are responsible for the paid lobbying effort that resulted in the passage of the $65 pro bono tax, which most, if not all, legal services lawyers will not have to pay.
	Not the Last Straw - Looting the Reserve Fund Three legal services offices have failed to properly budget for the diminished resources available to them because of the decreased earnings on IOLTA accounts due to lower interest rates. Because they do not wish to manage staff and resources according to their means and despite the fact that decreased earnings on IOLTA accounts has been a predictable fact of life for nearly a decade, they came to the State Bar for an "emergency" infusion of cash from your money, specifically the Reserve Fund of the State Bar. They asked for the transfer of $1.35 Million from the Reserve Fund to the Access to Justice Foundation for the use and benefit of these organizations. The Reserve Fund is for the use and benefit of the State Bar of Texas and, of course, comes from your dues. The Bar currently has more than enough use for the Reserve Fund including long, long overdue substantial maintenance of State Bar building and much needed technology updates. See a longer article on this issue here.