On July 2, 2021, the Fifth Circuit Court of Appeals issued an opinion related to mandatory membership in the State Bar of Texas. Among other things, the Court held: “[t]he Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights.” The case is McDonald v. Longley, No. 20-50448.
Read moreTexas Supreme Court Rules on Bar Admission in Time of Covid
If you are now, or have ever been, a licensed attorney, then you probably have a hazy constellation of bar exam memories seared into your brain. While each state handles its aspiring practitioners in different ways, for many lawyers nationwide the experience included being herded into a massive space packed with folding tables, borderline elbow-to-elbow with hundreds of other emotionally-exhausted recent graduates fueled by a summer’s worth of coffee and pizza, under the watchful eyes of a battalion of retiree proctors. Is it possible to replicate this special rite of passage in the time of Covid? The Texas Supreme Court, which ultimately controls the method of bar admission state-wide, decided on Friday it is not currently feasible to do so.
Some states, such as Washington and Utah, have decided to temporarily waive bar exam requirements for prospective attorneys who meet certain qualifications, like holding a JD from an ABA accredited school, or who fulfill a certain number of hours of supervised legal work. Here in Texas, law school deans, students, and prominent attorneys around the state, called for the state Supreme Court to similarly implement a “diploma privilege” that would have allowed JDs to earn licensure through supervised practice, or even just by virtue of having a JD.
Indeed, Texas has offered diploma privilege for bar admission in the past, though it has been almost 100 years. The requirement for a written examination was first implemented in Texas in 1903. Two years later, in 1905, UT Law graduates were able to join the bar without sitting for the exam (Texas Laws 1905, page 150, Laws 1919, page 63). In 1919, these rules were expanded to include graduates from other law schools, unnamed in the Act but enumerated in accompanying Rules. According to a 1978 article in the Houston Law Review, the reason for this expansion was lobbying from the then nascent (and now nonexistent) TCU law school to break the UT diploma privilege monopoly. (Stephen K. Huber & James E. Myers, Admission to the Practice of Law in Texas: an Analytical History, 15 Hou. L. Rev. 485, 512 (1978).) Rather than expand the diploma privilege to graduates of other Texas law schools, the Texas Supreme Court decided at that time to instead expand the privilege to graduates of law programs of high national renown, in order to encourage attorneys of quality to consider a move to Texas. The eight schools then covered besides UT were University of Virginia, Washington and Lee, Harvard, Yale, Columbia, University of Chicago, University of Michigan, and George Washington University. (Id.) The Texas diploma privilege lasted in this form until its total repeal in 1935.
Instead of reviving some version of the long-gone diploma privilege, even temporarily, this past Friday the Texas Supreme Court opted for a hybrid model. First, the Court outright cancelled the July 2020 exam administration previously scheduled for the end of this month. Next, the Court has ordered an in-person exam be administered September 9 – 11th, “subject to guidance from public health authorities.” Scoring will be rushed to only be delayed by three weeks from the typical release of July scores. Third, the Court has ordered a bar examination be offered on-line the first week of October. Finally, the Court has asked law school deans and local bar organization leaders to help identify practitioners willing to formally supervise practice by JDs who will sit for the bar in either September, October, or February 2021, thereby providing a path to begin practice despite disruption to the exam administration.
As Covid spread puts Texas on the map as a global hotspot, it seems likely the Texas Supreme Court may revisit the issue of diploma privilege again in the coming months. But with the bar now postponed at least six weeks, students can breathe a brief sigh of relief before getting back to their flashcards.
Texas Legal App from the State Bar Computer & Technology Section
Typically, access to the Texas Legal App is a benefit provided to members of the Computer & Technology Section of the State Bar of Texas. For a limited time, through June 30, 2020, the C & T Section is offering free access to the Texas Legal App for all Texas attorneys, paralegals, and law clerks. To become an authorized user of the app during this period, simply submit the enrollment form, available here. You will be asked to provide your name, an email address, your Bar number (or cell phone number if not a Bar member), and your area of practice. You will then be provided with links to the Web interface, the iOS app, and the Android app. You will also get login credentials to access the app itself. Once logged in, you will find a wealth of useful information and primary sources, including more than 62 civil codes and statutes. For a full list of the available resources, click here.
All content is keyword searchable and includes internal linking to other code sections available via the app. The app is also customizable, allowing you to create modules of content relevant to your practice area. Instructions for adding modules are provided in the C & T Texas Legal App how-to installation video available in the TechBytes library, which we wrote about for this blog in 2018. If you find content you wish to print and/or save as a PDF, the app will allow you to do that as well.
While we all continue to Stay Home and Work Safe, access to some traditional legal research resources may be limited. Take advantage of the Computer & Technology Section’s generous offer to share access to this valuable tool, the Texas Legal App, and consider joining the section to ensure the app’s continued availability. Also, remember that we at the Harris County Law Library are still providing services via our Virtual Reference Desk and new Chat Reference. Until we can see you again at the Law Library, stay in touch and informed using our remote services. We’re here to help!
January is Consumer Law Resources Month
January is Consumer Law Resources Month at the Harris County Law Library.
Visit our Featured Resource Section to see new and updated resources from the National Consumer Law Center.
Browse consumer law news, sample pleadings and other companion materials in the NCLC databases now available on the Law Library research computers.
Stay up to date on Texas consumer law with Advanced Consumer and Commercial Law Course books from the State Bar of Texas.
Self-represented litigants can find a copy of the HBA Consumer Law Handbook, which features a variety of legal information of interest to consumers, including guidance on buying a car, dealing with debt collection, landlord/tenant disputes, and more. Download a free copy through the HBA's Legal Handbooks website today.
For more information on Consumer Law and Protection, visit these websites:
Torn from the Headlines -- How Tech is Changing Law
In recent weeks, stories about tech in the practice of law have been filling our news feeds. Our last Tech Tuesday blog post focused on high profile failures and flubs. Today's stories reveal more productive uses of technology while demonstrating how the everyday online communication tools we now use are transforming the practice of law.
Lawyers are employing technology in novel ways to serve process and consult with colleagues. As described below, the authorities that govern these developments -- legislation, court rules, case law, and ethics opinions -- are (slowly) evolving as well. Twitter and Facebook are at center stage in these new approaches, as is digital communication itself. From the social media tools we use to the new literacy we've developed (e.g., abbreviations, emoticons, emoji, Bitmoji, stickers, memes, and more), tech is changing the law.
DNC Serves Subpoena on Wikileaks via Twitter
Earlier this month, a law firm representing the Democratic National Convention used Twitter to serve legal documents on WikiLeaks, an international nonprofit organization that facilitates the release of classified information, obtained from anonymous sources, via its website. Aside from the high profile parties to the case and the controversial claims it makes, the newsworthy aspect of this story, particularly for those in the legal field, is that the subpoena was served with a tweet. According to the Federal Rules of Civil Procedure, a court may serve an individual in another country through a number of channels, and although service by social media is not addressed specifically, Rule 4(f)(3) does allow for service "by other means not prohibited by international agreement, as the court orders." The Texas Rules of Civil Procedure include a similar provision. Rule 106(b)(2) states that a court may authorize service "in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."
This may be a first for Twitter, but Facebook has been used a number of times to legally notify a hard-to-locate party. In a 2015 New York divorce case, a woman was permitted to serve her estranged husband through Facebook. A New Jersey court relied on that decision to allow the same method of legal notice in a similar case later that year.
Routine use of social media as an alternative method of service is still a topic of debate, but plenty of digital ink has been spilled discussing its benefits and risks. In 2013, a bill was introduced in the Texas legislature to allow substituted service through social media websites, but the bill was never referred to a committee, and the topic hasn't been addressed since.
Texas Lawyers May Seek Input from Colleagues via Facebook
Just weeks ago, the State Bar of Texas Professional Ethics Committee considered this question: Can lawyers use social media to seek advice from other attorneys without violating the Texas Disciplinary Rules of Professional Conduct? According to the Committee, the answer is a qualified Yes. Attorneys may consult with their lawyer colleagues and seek their professional advice regarding client-related issues in online forums if and only if they honor their duty of confidentiality and respect the attorney-client privilege. The best source for further exploration of this topic is, of course, the opinion itself along with this report from the Texas Lawyer which provides an excellent overview of the State Bar's newly sanctioned activity.
Federal Court Uses Poop Emoji in a Published Opinion
The Seventh Circuit Court of Appeals recently published an opinion that included the poop emoji. There's almost nothing worthwhile to say about its appearance in this opinion except to recognize it as a historic first. To be fair, the poop emoji appeared as part of a quote from a message shared via Facebook. It was submitted as evidence in an employment discrimination case that ultimately hinged on the content of the quoted message. As it turns out, the use of emoji in employment suits has been discussed before. Legal scholars have also weighed in about emoji and the law and emoji as evidence, topics which are explored in the articles linked below.
- Emoji as Language and Their Place Outside American Copyright Law (NYU Journal of Property & Entertainment Law)
- The Emoji Factor: Humanizing the Emerging Law of Digital Speech (Tennessee Law Review)
- Your Clients Use of Emoji: It Matters (Ingham County Bar Association BRIEFS)