Bar Associations See ‘Shot Across the Bow’ in Speech Challenge

Mandatory state bar associations should review how they communicate with members after the Fifth Circuit ruled that health advice from the Louisiana Bar Association was out of bounds, law professors and a former state bar leader say.

A Louisiana lawyer’s First Amendment rights were violated when that state’s mandatory bar association offered wellness tips and promoted Pride month on social media in messages that didn’t sufficiently relate to the practice of law, the US Court of Appeals for the Fifth Circuit said.

The case is one of several in recent years in which attorneys have challenged mandatory state bar advocacy as a violation of their free speech rights, with mixed results. The Fifth Circuit’s decision follows a 2021 case in which the same appeals court panel ruled that the State Bar of Texas ran afoul of its members First Amendment rights with non-germane political advocacy.

After the ruling in Boudreaux v. La. State Bar Ass’n, such associations “need to be a lot more mindful of the kinds of speech that could get you sued again,” said Leslie Levin, a professor at the University of Connecticut School of Law.

“All of the mandatory bars are going to be looking at this ruling,” Levin said.

Thirty-one states have mandatory bar groups that often serve as regulatory agencies connected to the judiciary or the state supreme court, and handle attorney admission and discipline matters. They sometimes overlap with the missions of separate voluntary state bars that educate lawyers about changes in the law and provide networking opportunities that promote professional development.

Because lawyers in states with mandatory bars are obligated to join them to be able to practice, they must stick to communications that are “germane” specifically to lawyer regulation or improving the quality of legal services, Judge Jerry Smith wrote in the Fifth Circuit’s opinion. The groups “must stay in their constitutionally prescribed lane,” he said.

Bar associations are better off when they “stick to their knitting” by holding fast to what’s truly “germane” to their members, said Michael McConnell, a Stanford Law School professor. He said the Louisiana case “is a shot across the bow” and a warning to mandatory state bars “that they should do what they’re there for.”

Shifting Debate

Underlying the recent challenges is a 1990 US Supreme Court case, Keller v. State Bar of California, in which the justices held that the State Bar of California could use compulsory bar dues to fund activities related to lawyer regulation and the improvement of legal services.

Lawyers in Boudreaux and in a number of other states such as Michigan, Oregon, Texas, and Wisconsin have since filed suit against their mandatory state bars over communications or activities they say aren’t germane to the activities outlined in Keller.

In the Michigan case, Taylor v. Buchanan, Lucille Taylor argued that the requirement that the State Bar of Michigan’s use of mandatory membership dues for advocacy activities violated her freedom of speech. The Keller case and other Supreme Court precedent, including Janus v. AFSCME, a 2018 decision, foreclosed her claims, the U.S. Court of Appeals for the Sixth Circuit found in 2021.

The Supreme Court ruled in Janus that forcing public employees to subsidize unions they didn’t join violated their free speech rights.

Adam Jarchow and others filed a suit against the State Bar of Wisconsin, contending that a portion of their compulsory dues supported advocacy for positions they did not support. A district court judge rejected the challenge to the compulsory fees, also based on Keller, a finding the Seventh Circuit affirmed in Jarchow v. State Bar of Wisconsin in 2019.

The Supreme Court declined to hear both of those cases, as well as the Texas case the Fifth Circuit decided.

Still, the Fifth Circuit’s decision in the Texas case spurred the Louisiana association to change its policies and stop most of its legislative activity.

Bar associations like Louisiana’s face a tricky landscape, because it could be argued that bar groups, mandatory or not, are inherently interested in the well-being of their members, McConnell said. Therefore, promoting stretch-your-legs types of well-being tips offered by that state bar “could be seen as germane to its members,” he said.

Hank Greenberg, president of the New York State Bar Association from 2019-2020, said he discussed the issue often while leading the New York bar group. It’s “perfectly appropriate” for state bars to comment on social justice issues “as long as it’s tethered to the rule of law,” Greenberg said.

In “bar association world,” the issues swirling around the Louisiana case are typically robust and are debated “all the time,” said Greenberg, a shareholder with Greenberg Traurig.

“Every bar president encounters this issue,” he said.

The case is Boudreaux v. La. State Bar Ass’n, 5th Cir., No. 22-30564, 11/13/23