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Friday, December 8, 2023 | Back issues
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Fifth Circuit sides with Louisiana attorney in First Amendment row with state bar

An appellate panel stopped short of finding mandatory bar associations are unconstitutional. But it clarified what type of speech is off limits for them.

(CN)—The Louisiana State Bar strayed from its core role by giving its members wellness advice and promoting Pride Month, a Fifth Circuit panel ruled Monday, exempting an attorney who took issue with these activities from having to join the organization or pay it dues.

Like dozens of other U.S. states, the three states in the Fifth Circuit’s jurisdiction — Texas, Louisiana and Mississippi — have mandatory bars. Lawyers must join them and pay annual dues in order to practice law in the states.

In response to a First Amendment challenge by three Texas lawyers who claimed the Texas State Bar was using their dues to subsidize its political speech, such as lobbying for passage of a bill that would amend the Texas Constitution to recognize same-sex marriages, U.S. Circuit Judge Jerry Smith created guidelines.

Writing for a unanimous Fifth Circuit panel, Smith sided with the Texas trio in a July 2021 order and established what has been lauded as a crystal-clear standard for mandatory bar associations: to avoid trampling their members’ First Amendment free speech and free association rights, state bars’ speech must be reasonably related to the regulation or improvement of legal practice.

But deciding what is and is not germane to the legal profession can be tricky, as shown by Smith’s order on Monday in the case of Louisiana attorney Randy Boudreaux.

Making parallel claims as the Texas complaint, Boudreaux sued the Louisiana State Bar Association along with the Louisiana Supreme Court and its seven justices, because they help the state bar oversee the state’s attorneys, in New Orleans federal court in 2019.

U.S. District Judge Lance Africk, a George W. Bush appointee, threw out that case. But in 2021, the Fifth Circuit reversed part of that ruling.

The Louisiana State Bar, which charges compulsory annual dues ranging from $80 to $200, then attempted to moot Boudreaux’s arguments.

Using Smith’s opinion regarding the Texas State Bar as a template, it enacted immediate reforms in July 2021. To ensure it was not engaging in political speech, it nixed its legislation advocacy budget and booted a lobbyist off its payroll.

Following a June 2022 bench trial in which Africk examined 17 Louisiana State Bar tweets and emails Boudreaux argued had veered into unlawful speech, the judge again sided with the defendants and dismissed Boudreaux’s complaint with prejudice.

Boudreaux filed a second appeal and, after hearing arguments in July, Smith and his fellow panelists agreed on Monday that some of the Louisiana State Bar’s communications he challenged were not germane to the legal profession.

A group of “Wellness Wednesday” tweets related to the health of lawyers that the bar association sent from its account, encouraging attorneys to get sunlight, and touting the benefits of walnuts and exercising at least three times a week, fails the germaneness test “because they do not sufficiently relate to legal practice or the legal profession,” Smith wrote in a 30-page order.

“Although walnuts, exercise, and Vitamin D may be beneficial, they fall outside the LSBA’s purview, at least when they are the basis of generic advice to attorneys about health and fitness,” observed Smith, a Ronald Reagan appointee.

Also ungermane, Smith decided, were tweets informing lawyers about an iPhone software update and holiday charity drives for Christmas and Halloween.

The bar association argued that lawyers’ participation in community events improves the perception of law in the state.

Smith also determined the state bar had erred in sharing a Reuters article about how student loan debt affects young lawyers’ lives.

“If anything, the thrust of the article is backhanded support for student-debt relief, a nakedly political position,” Smith opined.

Refining the appellate court’s definition of what is and is not germane to the legal profession, Smith said germaneness is not satisfied just because a personal matter — like student loan debt — might impact someone who is practicing law.

“Instead, speech must be reasonably related to the regulation or improvement of legal practice. That generally means that speech engaging with, promoting, or encouraging participation in wider public policy and social controversies is rarely, if ever, germane,” Smith clarified.

Boudreaux, who is openly gay, also took issue with an LGBTQ Pride Month flag the state bar posted on its website in July, linking to a History.com article about gay rights.

On this front, the attorney said, he had no problem with the bar’s messaging, only that he was compelled to participate in it via his forced membership.

The panel determined the bar can promote the inclusion of LBGTQ people in the legal profession. But in this instance it went too far: It promoted LGBTQ causes generally with no nexus to the practice of law.

Though they sided with Boudreaux in part, the judges stopped short of his request to hold that mandatory bar associations violate the First Amendment. They also rejected his objections to the bar association's procedures for granting members’ pro rata dues refunds should they disagree with some of its statements.

The panelists, including U.S. Circuit Judge Jennifer Walker Elrod and Senior U.S. Circuit Judge Carolyn Dineen King, George W. Bush and Jimmy Carter appointees, respectively, granted Boudreaux a preliminary injunction preventing the Louisiana State Bar from requiring him to join or pay dues. But they stressed the injunction only applies to Boudreaux.

They remanded the case to Africk and said the injunction must stay in place until he crafts an acceptable remedy for Boudreaux in accord with their opinion.

Boudreaux’s lawyer, James Baehr of the Pelican Center for Justice, noted that similar challenges of mandatory bar associations have been filed across the country, a movement started by the Supreme Court’s 2018 ruling in Janus v. AFSCME.

In that 5-4 decision, the court held that public sector unions’ collection of compulsory dues from nonmembers infringed on their First Amendment rights.

Baehr said he was “pumped” about the Fifth Circuit’s order given the history of such cases.

Seven of these cases across the country have kind of percolated their way upwards and the courts have ruled against them a lot. And so I was very happy and pleased with the outcome in this case,” he said in a brief phone interview.

“They stood up for the rights of free speech and free association for bar members.”

The state bar through its counsel, Richard Stanley of the New Orleans firm Stanley, Reuter, Thornton, Alford, said it was pleased the Fifth Circuit recognized the reforms it had made to avoid political speech, and that it gives members a fair process for getting refunds of their contributions to bar association statements they disagree with.

"The Court nevertheless found concerns with some of the LSBA’s charitable, informational and wellness-related speech activities and programs," Stanley added in an emailed statement. "Our leadership is reviewing how best to address the issues identified by the Court. The LSBA will continue its mission to serve attorneys and the public through the regulation of the legal profession and improving the quality of legal services through its activities and programming."

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Categories / Appeals, First Amendment, Law

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