At 10th Circuit, Oklahoma attorney bucks against state bar membership mandate

An attorney sued the Oklahoma State Supreme Court and bar association challenging the state’s mandatory membership as an unlawful condition on practicing law in the Sooner State.DENVER (CN) — An Oklahoma attorney on Thursday asked the 10th Circuit to revive his First Amendment challenge of mandatory state bar membership, which he argues violates his right to free association.“The harm is in being forced to associate,” attorney John Brinkerhoff, representing Oklahoma attorney Mark Schell, told a three-judge panel. “ He might even agree, he just doesn’t want to be associated with it.”Citing several opinionated articles published in the Oklahoma Bar Association’s journal, Schell sued the bar and state Supreme Court in 2019. By requiring he belong to the bar to practice law in the Sooner State, he says he was forced to associate with stances taken on prison reform, election integrity and Oklahoma’s “embrace of the white racial identity.”Schell says the state bar violated his First Amendment right to free association — and corollary protection against being forced to associate with groups against his will.George W. Bush-appointed U.S. District Judge Joe Heaton dismissed Schell’s first two claims, while the attorney reached an agreement with the bar on the third. Schell appealed the dismissal to the 10th Circuit which brought the case back to life.In 2025, U.S. District Judge Joe Heaton granted summary judgment to the bar, finding most of the content published in the magazine germane, with one exception. Schell appealed.Heaton was actually the third judge assigned to the case following the recusals of Bush-appointed Senior U.S. District Judge Stephen Friot and George H.W. Bush-appointed Senior U.S. Circuit Judge Robin Cauthron.At the 10th Circuit on Thursday, Senior U.S. District Judge Kathryn Vratil, sitting with the panel by designation from the District of Kansas, questioned Brinkerhoff about the importance of Schell’s disagreement with the bar association’s stances.“I can’t find any evidence that he objects to the nongermane activities,” the H.W. Bush appointee said. “There’s no affidavit from him, there’s no facts, and I don’t understand how he has standing.”Brinkerhoff said the harm was in being forced to associate with the bar. Whether he agreed with the bar’s positions was irrelevant.“Disagreement isn’t an issue,” said Brinkerhoff who practices with Jones Day in Washington.U.S. Circuit Judge Carolyn McHugh asked whether Schell seeks individual relief or is trying to force systemwide change.“Is it his position that if the bar puts out any nongermane information, the bar has to become a voluntary bar, or he is seeking individual relief?” the Barack Obama appointee asked. “I thought he was asking to not be required to be a member of the bar.”Brinkerhoff said Schell would take either solution.On behalf of the Oklahoma Bar Association, attorney Daniel Volchok called both measures extreme. Making the state bar voluntary would disrupt a tradition and public interest in managing how law is practiced.In addition, Volchok argued, “requiring state bars to stop engaging in nongermane speech would require state bars to stop speaking altogether except perhaps on the most unhelpful anodyne topics.”Pointing to a recent Continuing Legal Education panel discussion, Volchok said the innocent singing of “Happy Birthday” became challenged as nongermane by an attending Jehovah’s Witness who believes birthdays disrespectfully glorify individuals.“That is a very real example,” said Volchok, who practices with WilmerHale in Washington.Citing the 10th Circuit’s recent decision rejecting Kansas attorney Amy Pomeroy’s challenge to the Sunflower State’s compulsory bar association and spending, Volchok urged the court to affirm Heaton’s dismissal.Senior U.S. Circuit Judge David Ebel, appointed by Ronald Reagan, rounded out the panel. Ebel also decided the Pomeroy case alongside U.S. Circuit Judges Joel Carson, a Donald Trump appointee, and Richard Federico, a Joe Biden appointee.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads