Antitrust Law Daily Wrap Up, ANTITRUST—W.D. Tex.: Counsel not appointed for failed applicant’s antitrust claims against Texas bar, (Oct 10, 2013)

By Tobias J. Gillett, J.D., LL.M.

A failed applicant to the State Bar of Texas and his brother could not obtain appointment of counsel for their claims against the State of Texas, the Travis County Board of Law Examiners, the Supreme Court of Texas, and two individuals, because the merits of the brothers’ claims, including their antitrust claims, were weak, the federal district court in Austin has ruled (Osborne v. State of Texas, October 7, 2013, Austin, A.).

According to the brothers’ complaint, in 2009, Jamar Osborne graduated from the University of Oklahoma Law School and applied for admission to the Texas Bar, but was denied admission after failing to obtain a passing score on the bar exam. He registered to take the exam again in February 2013, but chose not to proceed after obtaining alternate employment. However, the State Bar of Texas refused to refund his application fee or apply it to a future exam. He was also denied employment in an attorney position with Travis County, Texas because he lacked a license to practice law in Texas. Further, Mikal Osborne alleged that he was unable to obtain the assistance of his brother in a family law matter, due to Jamar’s lack of a license to practice in Texas, and had to hire another lawyer, resulting in alleged overcharges in legal fees. The Osbornes asserted a variety of claims, including claims that the State Bar of Texas had committed antitrust violations.

In the present decision, the court addressed the Osborne’s motions for service by marshal and for appointment of counsel. Resolving the motion for appointment of counsel required the court to balance three factors, including “(1) the party’s financial ability to retain private counsel, (2) the party’s own efforts to secure counsel, and (3) the merits of the case.”

The court concluded that the Osbornes’ antitrust claims lacked merit. The Texas Bar did not monopolize the practice of law in violation of the Sherman Act because the courts had “recognized that states may regulate the practice of law in their jurisdictions, as long as those regulations do not contravene the due process or equal protection clauses of the Fourteenth Amendment.” Moreover, any attempt to challenge as anti-competitive the requirement that applicants for the Texas Bar must pass the bar exam would be barred by the state action doctrine, because the Supreme Court of Texas had promulgated the rules governing the procedure for admission to the bar and retained sole authority over deciding which applicants should be admitted.

The court also found that the Osbornes had not provided sufficient information regarding their financial inability to retain counsel, had not made reasonably diligent efforts to retain counsel, and “presented little to support the majority of their claims.” In addition, the court found the Osbornes were capable of adequately presenting their case without the assistance of counsel. Therefore, the court denied the motion for appointment of counsel. The court also denied the motion for effectuation of service by the U.S. Marshals or any other individual because the Osbornes did not show they were indigent.

The case is No. A-13-CV-528-LY.

Cases: Antitrust TexasNews