Mark Schell: 10th Circuit Hears Oklahoma Bar Membership Challenge

• Oklahoma attorney Mark Schell is challenging the mandatory membership requirement of the Oklahoma Bar Association in the 10th Circuit Court of Appeals.
• Schell argues that forced membership violates his First Amendment right to free association, citing objectionable content published in the bar's journal on issues like prison reform and election integrity.
• A U.S. District Judge previously granted summary judgment to the bar, finding most content germane, which Schell appealed.
• At the 10th Circuit hearing, Schell's attorney argued the harm is in forced association, while the bar's counsel contended that making membership voluntary or restricting speech would be extreme and disruptive.
• The case could significantly impact Oklahoma attorney licensing requirements and the structure of state bar associations, potentially leading to voluntary membership.

This challenge to mandatory Oklahoma bar membership carries significant implications for Oklahoma attorney licensing requirements and the broader structure of state bar associations across the nation, particularly within the 10th Circuit.

An Oklahoma attorney, Mark Schell, is actively challenging the constitutionality of mandatory membership in the Oklahoma Bar Association, arguing that it infringes upon his First Amendment right to free association. This significant legal battle has reached the 10th Circuit Court of Appeals, where a three-judge panel recently heard arguments regarding Schell's appeal to revive his case. Schell initiated his lawsuit in 2019 against both the Oklahoma State Supreme Court and the bar association, contending that the requirement to belong to the bar as a condition for practicing law in Oklahoma forces him to associate with positions he opposes.

Schell specifically cited several opinionated articles published in the Oklahoma Bar Association’s journal as evidence of this forced association. He expressed disagreement with stances taken by the bar on issues such as prison reform, election integrity, and what he described as Oklahoma’s “embrace of the white racial identity.” His core argument centers on the principle that he should not be compelled to affiliate with a group that advocates for views contrary to his own, regardless of whether he agrees with every specific stance.

The case has seen a complex procedural history at the district court level. U.S. District Judge Joe Heaton, a George W. Bush appointee, initially dismissed two of Schell’s claims, while a third claim was resolved through an agreement with the bar. The case was later brought back to life when Schell appealed the dismissal to the 10th Circuit. In 2025, Judge Heaton granted summary judgment in favor of the bar, determining that most of the content published in the OBA magazine was germane to the practice of law, with only one exception. Schell subsequently appealed this decision.

During the 10th Circuit hearing, John Brinkerhoff, representing Mark Schell, emphasized that the fundamental harm lies in the compulsion to associate, asserting that Schell's agreement or disagreement with the bar's specific positions is irrelevant to the First Amendment violation. Senior U.S. District Judge Kathryn Vratil, sitting by designation from the District of Kansas, questioned Brinkerhoff about Schell's standing, noting a lack of evidence or affidavit detailing his objections to specific non-germane activities. U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, inquired whether Schell sought individual relief from membership or a system-wide change to a voluntary bar, to which Brinkerhoff responded that Schell would accept either outcome. Representing the Oklahoma Bar Association, Daniel Volchok countered that both proposed solutions were extreme, arguing that making the bar voluntary would disrupt a long-standing tradition and public interest in regulating legal practice. Volchok also contended that restricting the bar from engaging in “nongermane speech” would effectively silence it on all but the most anodyne topics, citing an example where even the innocent singing of “Happy Birthday” at a Continuing Legal Education panel was challenged as nongermane by an attendee.

This challenge to mandatory Oklahoma bar membership carries significant implications for Oklahoma attorney licensing requirements and the broader structure of state bar associations across the nation, particularly within the 10th Circuit. The outcome of *Schell v Oklahoma Bar* could fundamentally alter the professional licensing landscape, potentially leading to a shift towards voluntary membership models if Schell's arguments prevail. The Oklahoma Bar Association, through its counsel, has underscored the public interest in maintaining the current system for managing the practice of law, suggesting that a voluntary bar would undermine this regulatory function.

The 10th Circuit has previously addressed similar challenges, having recently rejected a challenge by Kansas attorney Amy Pomeroy against the Kansas bar. This precedent adds a layer of complexity to Schell's appeal, as the court will weigh the arguments presented against its prior rulings on mandatory bar membership challenges. The case highlights a tension between the state's interest in regulating the legal profession and an individual attorney's First Amendment freedom of association, making it a critical watchpoint for freedom of association lawyers and legal professionals nationwide.

This case challenges the constitutionality of mandatory state bar membership, a foundational requirement for practicing law. Lawyers in Oklahoma and other 10th Circuit states should monitor this appeal closely, as a ruling in favor of the attorney could fundamentally alter professional licensing requirements and the structure of state bar associations, potentially leading to voluntary membership.

Source: Original reporting via Courthouse News