Fifth Circuit: Compelled LSBA Membership Violates First Amendment

On November 13, 2023, the United States Fifth Circuit Court of Appeals held that the Louisiana State Bar Association’s “mandatory membership and dues are . . . unconstitutional” because they violate the rights to free speech and free association guaranteed by the First Amendment. See Boudreaux v. La. State Bar Assoc., No. 23-30564 at 26 (5th Cir. Nov. 13, 2023). As a result, the court rendered a preliminary injunction preventing the LSBA from requiring the plaintiff to join the LSBA in order to practice law. See Boudreaux at 30.

New Orleans lawyer Randy Boudreaux sued the LSBA and the Louisiana Supreme Court in 2019 claiming that compulsory membership in the LSBA violated his First Amendment rights. A compulsory bar membership policy runs afoul of the First Amendment when the association engages in speech that is “nongermane” to regulating lawyers or to improving the quality of legal services. See, e.g., Keller v. State Bar of Cal., 496 U.S. 1, 13-14 (1990). Boudreaux alleged that the LSBA engaged in nongermane speech by publishing tweets, emails, and webpages encouraging wellness, church attendance (at the Red Mass), LGBT pride, and holiday charity (through a Secret Santa program).

The LSBA countered that its tweets improved attorney wellness in general and thereby improved the quality of legal services. Further, it argued that its encouragement of community engagement brings “goodwill to the legal profession, which in turn improves the perception and practice of law” in Louisiana. Boudreaux at 18.

The Fifth Circuit rejected the LSBA’s arguments. As to communications about wellness, the court queried: “If a bar association may tout the health benefits of broccoli, may it also advise attorneys to . . . get married and have children if it believes that those activities improved attorney wellness and therefore the quality of legal services in the state?” As to advertisements about community events and charity drives, the court noted that “they may increase goodwill abstractly,” but concluded that they are “not inherently related to actual legal practice.”

For these reasons, the court found that the LSBA is “engaged in non-germane speech.” Boudreaux at 26. “Compelled membership in a bar association that engages in non-germane activities . . . fails exacting scrutiny.” Id. (quoting McDonald v. Longley, 4 F.4th 229, 246 (5th Cir. 2021)). Although states may regulate the legal profession and work to improve the quality of legal services, “they do not have a compelling interest in having all licensed attorneys engage as a group in other, non-germane activities.” Id. Therefore, the court held that “[t]he LSBA’s mandatory membership and dues are therefore unconstitutional, ” and remanded the matter to United States District Judge Lance Africk “for a determination of the proper remedy.” In the interim, the court rendered “a preliminary injunction preventing the LSBA from requiring Boudreaux to join or pay dues to the LSBA pending completion of the remedies phase.” Id. at 30.

So, can Louisiana lawyers now quit the LSBA? Not just yet, but standby.

Disclosure: Dane S. Ciolino represented the plaintiff in Boudreaux along with lawyers from the Goldwater Institute and Pelican Institute.

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