Still smarting from the embezzlement of $500,000 from its coffers between 2003 and 2012, the State Bar of Texas is engaged in a battle over the right of its board members and officials to have access to internal emails and other documents.
The state bar’s executive committee earlier this month signed off on a new policy that would make give executive director oversight of inside records and setting up a system to approve or deny access to those records.
A full board vote is expected at its Jan. 26 meeting. It won’t go without some noise.
“The First Amendment and the right to free speech is something you would think lawyers would embrace,” said Joe Longley, president elect of the state bar, who is advocating for wider access and opposes the proposed policy. “I would hope that rather than trying to pass something that creates gate keeping for access, they are making it harder for people in office to carry out their duties by keeping things from them.”
Longley refers to the embezzlement of bar funds that went undetected over nine years by former State Bar membership director Kathleen Holder. She received ten years of probation in 2013.
“I look at my fiduciary duty and having to keep some kind of watch over what’s going on,” Longley said. “And some of the records, emails and other records, are what makes up the operation of the organization.”
Backers of the measure contend the policy will provide clarity and an ability to appeal any decision on access to inside records.
“Someone’s request can be denied and they can now appeal to the board,” State Bar President Tom Vick said. “Or the executive director can look at the request and ask the board to make the call.”
Vick said most requests for records are informal, seeking archival material regarding the previous solving of an issue related to bar business. Others, though, can be specific, as in “all emails between x and y from these dates,” Vick said.
He added that the proposed policy springs from the University of Texas, which resisted former University of Texas System Regent Wallace Hall in his quest to access internal emails and other records in connection with loans to faculty and admissions practices to the UT Law School.
As the controversy unwound, the university created a written rule for access to the processing of requests from regents.
“So we are creating good policy that has already been approved by the courts and is used by UT,” Vick said.
Under the proposal, if a state bar official — either part of the 15-member executive committee or the 46-member board — seeks access to certain records that the executive director deems irrelevant or otherwise not subject to disclosure under state bar rule, the issue goes to the board for a vote. The board meets every three months.
Longley launched the effort to create a more authoritative policy on records when he requested emails from the bar server from an individual. He was allowed to view the records, but when he asked for copies, he was denied, as the state bar’s executive director, Trey Apffel, claimed several of the emails were unrelated to bar business.
Longley had also pursued bar records related to Holder’s crime.
“But they did not want to answer any questions about that episode, and they are now trying to pass this restriction,” he said.
The State Bar of Texas fought to prevent the public from seeing the inside workings of Holder’s scheme, filing a lawsuit in 2012 against the state Attorney General’s office after it ruled in favor of releasing. The bar contended release of the materials violated state law regarding records of an ongoing investigation.
The bar lost, and the records can be found here. Longley performed extensive work in attempting to track down the chain of events regarding Holder’s theft and created a web site, Texas Lawyers for State Bar Reform with his findings. In the process, he ruffled the feathers of the state bar’s establishment.
Longley was the lone executive committee member who did not support the newly proposed records policy.
“If you take an oath of office, you have to take that seriously,” Longley said. “And you need to see the raw data. If, for example, there was an email that would have tipped people off to what was going on with the embezzlement, it might have been detected earlier on. The only way to do that is to look at the raw data.”
The state bar is funded by dues and other fees on members but as an adjunct agency of the judicial branch is subject to the state’s open records laws. It is composed of just over 100,000 members, 90 percent of them in Texas.
Steve Miller can be reached at [email protected]