(CN) — The Louisiana State Bar says it's changed its rules to ensure it is not engaging in political speech.
A disgruntled member says it is still crossing the line on its website and social media posts.
Randy Boudreaux sued the Louisiana State Bar Association in New Orleans federal court in 2019, claiming it was violating his constitutional rights to free speech and association by using his dues to pay for lobbying and other activities not related to its core legal roles. A lower court threw out that case, but the Fifth Circuit in 2021 reversed part of that ruling before taking up the case again on Tuesday.
Boudreaux’s case is not a one-off. Across the country, lawyers mounted similar challenges against mandatory bar associations following the Supreme Court’s 2018 ruling in Janus v. AFSCME. That decision held that public sector unions collecting compulsory dues from nonmembers infringed on their First Amendment rights.
Like more than 20 other U.S. states, Louisiana has a mandatory bar. Lawyers must join it to practice law in the state and pay annual dues, which are currently either $80 or $200 depending on how long someone has been a member.
In his suit, Boudreaux also named the Louisiana Supreme Court and its seven justices as defendants because they help the state bar oversee the state’s attorneys.
The Supreme Court has declined to take up two cases involving mandatory state bar requirements, but the Fifth Circuit has weighed in — and not just on Boudreaux's case.
In 2021, a three-judge panel of the court agreed with three Texas lawyers that the Texas State Bar had trampled on their civil rights. The court found the bar had veered from its core purpose, including by lobbying state lawmakers for passage of bills wholly disconnected from the court system such as protections for same-sex marriages.
U.S. Circuit Judge Jerry Smith, a Reagan appointee who also sat on Tuesday's panel, issued an injunction in that case, McDonald v. Longley, that prevented the Texas State Bar from requiring the plaintiffs to join or pay dues. He also wrote the unanimous opinion.
Smith no doubt felt a surge of pride on Tuesday when the Louisiana State Bar’s attorney, Richard Stanley of the New Orleans firm Stanley, Reuter, Thornton, Alford, said his McDonald opinion had “created a very clear standard for bar associations.”
Stanley said the state bar used the order as a template to enact immediate reforms, nixing its legislation budget and booting a lobbyist off its payroll.
Even still, Boudreaux’s lawyer, James Baehr of the Pelican Center for Justice, said the state bar is still straying into political issues, as evidenced by its website.
“While preparing for this argument, I was able to get on the website, and I looked at their diversity initiative page,” Baehr said. “And the bar, on the diversity initiative page, has an enormous LGBT Pride Month flag.”
Although Boudreaux is gay, Baehr continued, he does not agree with every aspect of LGBTQ+ culture and should not be compelled to associate with it. Besides, Baehr said, "this is clearly a political and ideological and nongermane issue."
Much of Tuesday's hearing focused on questions like this — of what exactly was or wasn't appropriate for the state bar to do or say.
Smith asked Baehr if, in his view, it would also be wrong for the Louisiana State Bar to post a message on its website wishing members a Merry Christmas.
Baehr concurred. “While I support saying 'Merry Christmas' to people, that’s not germane to the practice of law," he said. He also complained about the state bar’s advocacy of diversity. In an online policy statement, the bar says it's "committed to diversity in its membership" and argues increased diversity helps improve the legal field, including by bringing "more varied perspectives."
“Dividing people up by race is extremely controversial,” Baehr said. He cited the Supreme Court’s recent decision invalidating affirmative action policies at Harvard and the University of North Carolina, and narrowing the use of race in college admissions.
U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, asked Stanley, the bar’s counsel, about the pride flag on its website. She questioned how celebrating Pride was relevant to the state bar.
Stanley argued it dovetailed with the bar’s message of supporting diversity. He pointed to the McDonald ruling, which greenlit a variety of diversity initiatives at the Texas State Bar as sufficiently related to the legal profession, including the bar's spending of around $500,000 per year to enhance job opportunities for minorities, women and LGBTQ attorneys.
At the end of the 40-minute hearing, Judge Smith called out Boudreaux and Baehr for complaining about the Louisiana State Bar publicly reminding members to take care of their health.
“Everybody knows lawyers have personal problems, including health problems, that can affect the practice of law and their service to their clients," Smith said. "I just can’t imagine why you say that isn’t germane. I think it undermines the credibility of your presentation."
Baehr did not back down. He reiterated his argument that the state bar must focus solely on regulating law and urged the panel to set a “crystal clear” standard on what is and is not germane.
“Currently we don’t have that line because the bar is continuing to engage in activities we believe are nongermane,” he concluded.
A third panelist, U.S. District Judge Carolyn Dineen King, a Jimmy Carter appointee, was not in the courtroom but joined the arguments remotely. The judges did not say when they would rule on the appeal.
Follow @cam_langford
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
