I Asked Georgia Bar General Counsel Russell D. Willard: Private Bar or Arm of the State?

From: the complainant
Subject: Your Office Told a Federal Court the State Controls the Bar. It Told Me Title II Does Not Apply.
Attachments: None.

Dear Mr. Willard:

Your office told me that the State Bar of Georgia is not a public entity and is not subject to Title II. It told a federal court that the State controls the Bar and its agents and employees, and that the Bar is an arm of the State. Both were official. Both are in writing. You head that office. State which account it stands behind.

Part 1. The written record.

1. On May 12, 2026, Deputy General Counsel William D. NeSmith III wrote that he was “responding on behalf of the State Bar of Georgia,” and told me: “The State Bar of Georgia is not a public entity, such as a federal, state or local government department or agency.” He wrote: “Although the State Bar serves as an administrative arm of the Supreme Court of Georgia pursuant to the Court’s authority over the regulation of the legal profession, it nevertheless remains a private, member-funded, and member-governed organization. The State Bar of Georgia is not a department or agency of the State of Georgia, therefore we are not required to have a published ADA Coordinator.”

2. Five days earlier, on May 7, 2026, Senior Assistant General Counsel John J. Shiptenko wrote to me, copying you and Mr. NeSmith: “A public entity can have numerous ADA coordinators.” And: “We have more than one, depending on the program, service, or activity that the disabled individual needs to access.” In the same email he wrote: “Yesterday, I spoke to Ms. Stacey Peace, State ADA Coordinator, with the State of Georgia’s ADA Coordinator’s Office. Based on that conversation, I am analyzing our ADA notices and processes to determine whether and how they can be improved.”

3. On May 12, the same day as Mr. NeSmith’s email, counsel for the defendants in Mignott v. State Bar of Georgia Foundation, Inc., N.D. Ga. No. 1:23-cv-01834-ELR, filed a renewed motion to dismiss, Document 46. The named defendants include your office, the State Bar of Georgia Office of General Counsel. Page 19 states: “As the administrative arm of the Georgia Supreme Court, Defendants are entitled to qualified immunity.”

4. On May 29, 2026, Senior Assistant General Counsel John J. Shiptenko wrote to me: “To be clear, the State Bar’s position remains that it is not subject to Title II of the Americans with Disabilities Act.” He wrote that any obligation “would arise under Title III rather than Title II.” Title III is the part of the ADA that applies to private entities.

5. On June 9, 2026, eleven days later, the same defendants, including your office, filed a reply, Document 52. At ECF page 4 it states: “the State, through the Georgia Supreme Court, controls the State Bar and its agents and employees”; “the State Bar is an arm of the State and was acting as an arm of the State during all phases of ███████’s disciplinary action”; and “the State Bar clearly satisfies all four factors.”

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7. Title II of the ADA reaches every “public entity,” which the statute defines to include “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B).

Within three business days, identify any fact above that you dispute and the specific correction. Any fact not disputed I will treat as unrebutted.

One correction on my side, so that this letter meets the standard it asks of your office. My June 8 and September 5, 2026 letters to your Director of Human Resources quoted one paragraph of Mr. NeSmith’s May 12 email in wording that does not match the email as sent. His actual words were that my invocation of the ADA process “may be directed less toward obtaining accommodation or access assistance and more toward securing a particular substantive outcome regarding the underlying grievance matter.” Every May 12 quotation in this letter is taken from the email itself.

Part 2. Which one is true?

Who controls the State Bar of Georgia is a question of fact, and your office has described it two ways. To me, on May 12: “member-governed.” To a federal court, on June 9: “the State, through the Georgia Supreme Court, controls the State Bar and its agents and employees.” Title III, on May 29. An arm of the State, eleven days later.

Mr. NeSmith’s own sentence called the Bar an administrative arm of the Supreme Court of Georgia and, in the same breath, private and member governed. What it did not do, and what Documents 46 and 52 now make necessary, is explain how an arm of the State that the State controls, down to its agents and employees, is not an instrumentality of the State.

Title II covers every instrumentality of a State. If the Bar is an instrumentality of the State within the meaning of 42 U.S.C. § 12131(1)(B), then the statements to me that it is “not a public entity” and “not subject to Title II” were false. If the Bar is not an instrumentality of the State, then your office owes an explanation it has never given: how an entity that the State controls, down to its agents and employees, and that acts as an arm of the State, is not one.

If the Bar relies on different legal tests, identify each test, the facts it relies on, and the authority for its conclusion. State who controls the grievance process I used and the employees who administer it. If you distinguish that process from the disciplinary functions described in your court filings, identify the distinction and its legal basis. Naming different tests is not applying them. If the answer is that the Bar is an arm of the Georgia Supreme Court rather than the executive branch, that changes nothing. Title II reaches the judicial branch of a State. Tennessee v. Lane, 541 U.S. 509 (2004).

I am not a lawyer. I have spent enough years in real estate to know that a written answer has to stand up to the written record. Your office enforces Rule 3.3, Candor toward the Tribunal, and Rule 4.1, Truthfulness in Statements to Others. I am not accusing anyone of violating either rule. I am asking your office to account for its own written representations. Your office does not get a lower standard of candor when it writes to a disabled member of the public than when it writes to a federal judge.

Part 3. Answer each request within three business days, by Friday, September 25, 2026.

1. State whether the State Bar maintains its May 29 denial of Title II coverage. Answer yes or no, and state expressly whether that answer includes its grievance process.

2. If the Bar acknowledges that Title II applies: adopt and publish a written Title II policy. Designate the responsible employee required by 28 C.F.R. § 35.107(a) and publish the grievance procedure required by 28 C.F.R. § 35.107(b). Both apply to any public entity with 50 or more employees; your own staff directory, as of June 1, 2026, lists 113. If the Bar disputes that it employs 50 or more persons, state its count and the date of that count. Withdraw in writing the May 12 statement that the Bar is “not required to have a published ADA Coordinator” and the May 29 statement that it “is not subject to Title II.”

3. State whether your office maintains the representations about state control in Documents 46 and 52. If any of them requires correction, identify the correction and state whether your office will notify the court.

4. If your office maintains both its denial of Title II coverage and its representations of state control, identify the facts and the legal authority that reconcile them.

If I receive no written answer by that date, the record will show that your office was asked which account it stands behind and did not say.

Respectfully,

██████ ███████

I am a person with a disability. I request written communication by email in an accessible electronic format as a reasonable modification and for effective communication under 28 C.F.R. §§ 35.130(b)(7) and 35.160. I use assistive technology to prepare written communications. I apologize in advance for any typographical or transcription error. If any portion is unclear, please identify the specific portion and I will clarify in writing.