The State Bar of Texas and Steve Fischer, who gathered enough petition signatures to become a candidate for State Bar president-elect, both claim victory after a March 19 Texas attorney general opinion.
The Bar requested the AG opinion, arguing that a petition candidate must follow the Bar’s election rules, which set candidate qualifications, regulate campaign activities, impose spending limits and more. Fischer, the second petition candidate in Bar history, took issue with rules that prohibited him from being a member of the State Bar’s board of director while running for president-elect.
The AG opinion says a petition candidate must follow the election rules. But it also says the board-member rule is "unenforceable" for a petition candidate.
Four days before the AG opinion came out, Fischer resigned from the State Bar board so he could run for president-elect.
On March 20, the Bar decided to reinstate him.
"He will be back on the board of directors," says Bar executive director Michelle Hunter, adding, "We just thought it was the best resolution."
Fischer says about getting his position back, "I think it was the right thing for them to do, and I’m satisfied."
Fischer, a Rockport solo, says that he resigned prior to the opinion’s release in response to telephone calls and an email by Bob Black, co-chairman of the Bar’s Nominations and Elections Subcommittee, that said, if he didn’t, "I’d be ineligible, and they would not print the ballot with my name on it."
Black, managing shareholder in MehaffyWeber in Beaumont, says his position was that Fischer, as a petition candidate, would have to follow all of the Bar’s election rules, including the one about not being a current board member.
"That was my position, is that he’d be ineligible. However, he resigned before I ever had to make that decision," Black says.
The AG opinion says that certain language in the State Bar Act "has led some to believe" that the provision about petition candidates allows a petition candidate to run for election outside of the Bar’s rules. The opinion says, "It does not exempt candidates from those rules."
The opinion discusses two provisions in the Bar board policy manual: One says that a "qualified member" can be nominated by petition. The other lists qualifications, including that a candidate "is not currently serving as a Board [of Directors] member."
The opinion says, "by contrast," a Bar rule directly tracks the language of the State Bar Act, which, quoting the rule, says, "Any other member of the State Bar" can become a petition candidate. Other Bar rules say the board’s policies must be consistent with the act and the rules, and if there is "inconsistency or conflict," then the act and the rules take precedence.
The AG’s opinion concludes that the board policies prohibiting a petition candidate from being a board member do conflict with the law and rules, and "those policies are unenforceable."
Hunter says the opinion will help the Bar more easily administer the election.
"The crux of it is we are trying to be fair to everyone who is out there spending their time and energy getting to know the lawyers and their issues," Hunter says.
Fischer says he thinks in general, the Bar should be able to make election rules, but he had a problem with resigning as a board member.
That’s not all: Fischer says he "won’t abide by" two other election rules limiting him from communicating with the media and restricting him from sending mass emails to lawyers unless he knows each one personally.
"I am an American. I will talk to who I want to," Fischer says, adding, "I feel very strongly about free speech and free press."