Louisiana Supreme Court Defines Parameters of Permissible Activities of the LSBA

On September 14, 2021, the Louisiana Supreme Court enacted a new section 6 to Louisiana Supreme Court Rule XVIII (“Roll of Attorneys.”) See La.S.Ct.R. XVIII, § 6. The new Section 6 defines the parameters of permissible activities of the LSBA and regulates the lobbying activities of the LSBA to ensure compliance with the United States Fifth Circuit Court of Appeals decisions related to mandatory membership in state bar associations. See McDonald v. Longley, No. 20-50448 (5th Cir. Jul. 2, 2021); Boudreaux v. La. State Bar Assoc., No. 20-30086 (5th Cir. Jul. 2, 2021). The new section, entitled “Purpose and Scope of Mandatory Bar” provides:

The purpose of the Louisiana State Bar Association (LSBA) as a mandatory and integrated bar shall be to promote and assist the regulation of the practice of law, improve the quality of legal services, advance the science of jurisprudence, promote the administration of justice, uphold the honor of the Courts and of the profession of law including Louisiana’s civil law system, and, generally, to promote the welfare of the profession in the State.  The LSBA shall limit its activities to those that are constitutionally germane to its purposes, and shall limit its legislative activities to issues involving practice and procedure, the judicial system, access to the courts, the compensation of judges or lawyers, or the legal profession, and to responding to any requests for information received from the legislature.  Any legislative positions on issues within the scope of this rule shall be voted upon and approved in advance by the LSBA’s Board of Governors and thereafter published to members of the LSBA.

See La.S.Ct.R. XVIII, § 6.

The Louisiana Supreme Court enacted section 6 in response to two recent Fifth Circuit cases considering mandatory membership in state bar associations. On July 2, 2021, the United States Fifth Circuit Court of Appeals in companion cases out of Texas and Louisiana held that states cannot force lawyers to join a bar association that is engaged in activities that are not germane to the practice of law. See McDonald v. Longley, No. 20-50448 (5th Cir. Jul. 2, 2021) (holding that because the Texas Bar “is engaged in non-germane activities,” forcing lawyers “to join it violates their First Amendment rights”); Boudreaux v. La. State Bar Assoc., No. 20-30086 (5th Cir. Jul. 2, 2021) (holding that Louisiana lawyer has viable claim that LSBA’s “political and legislative activity goes beyond what’s constitutionally permissible”). These decisions portend significant changes ahead for Louisiana lawyers and the Louisiana State Bar Association.

The Decisions

In McDonald (the Texas case), the Fifth Circuit noted that existing SCOTUS decisions–namely Lathrop v. Donohue, 367 U.S. 820 (1961) and Keller v. State Bar of Ca., 496 U.S. 1 (1990)–permit states to compel membership in a bar association that is engaged in “regulating the legal profession” and “improving the quality of legal services.” See McDonald at p. 19 (citing Keller, 496 U.S. at 13).1 However, compelling bar membership violates the First Amendment when the bar engages in lobbying efforts that have “nothing to do with regulating the legal profession or improving the quality of legal services.” Id. at p. 21. Here, the Texas Bar was engaged in many non-germane political and ideological causes:

Many of the bills the Bar supported relate to substantive Texas law and are wholly disconnected from the Texas court system or the law governing lawyers’ activities. For example, the Bar’s lobbying to amend the Texas Constitution’s definition of marriage and create civil unions is obviously non-germane. The Bar’s presumably less-controversial proposed substantive changes to Texas family law are equally non-germane.

McDonald at p. 22 (cleaned up); see also id. at p. 27 (holding that “lobbying for changes to Texas substantive law designed to benefit low-income Texans” is “non-germane” to the legal profession and impermissible).

As a result, the McDonald court held that compelling Texas lawyers to join the bar “violates their First Amendment rights.” Id. at p. 29.

In Boudreaux (the Louisiana case), the Fifth Circuit considered a far less developed record. Indeed, the court considered only whether the EDLA erred in granting the LSBA’s motions to dismiss for lack of jurisdiction and for failure to state a viable claim. See Boudreaux at p. 5. In reversing the district court, the Fifth Circuit held as follows:

Boudreaux alleged that LSBA engages in legislative advocacy that is “inherently political and ideological.” His complaint specifically identifies LSBA’s resolutions urging a moratorium on executions, opposing civil immunities, and advocating changes to the high school civics curriculum. His complaint also notes LSBA’s lobbying against reducing the amount-in-controversy threshold to request a civil jury trial in state law, against requiring judges to file financial statements, and against allowing school personnel to carry firearms in schools. With these allegations, Boudreaux plausibly pleads that LSBA’s political and legislative activity goes beyond what’s constitutionally permissible under Lathrop—that the activity is not justified by the state’s interest in regulating and improving the legal profession. That’s all that is required to present the free association claim that Keller left unresolved.

Id. at p. 11.

The court remanded the case to the district court for further proceedings, including for consideration of whether the LSBA engages “in any non-germane activity.” See id. at p. 19; id. at p. 11.

The Future in Louisiana?

So, what does the future hold for Louisiana lawyers? Of course, its always possible that the Fifth Circuit en banc or the Supreme Court will reverse or modify McDonald and Boudreaux. But if those opinions stand, the Louisiana Bar Association will have to make some changes to the way it operates. This is so because the LSBA has engaged in even more non-germane political and ideological activities than the Texas Bar.2 The McDonald case provides at least three options for the Louisiana Supreme Court and LSBA to follow to fix the current problem:

  1. The Louisiana bar “can cease engaging in non-germane activities.”
  2. Louisiana “can directly regulate the legal profession and create a voluntary bar association, like New York’s.”
  3. Louisiana “can adopt a hybrid system, like California’s.”3

But this much is clear, Louisiana “may not continue mandating membership in the Bar” if it is engaged in activities non-germane to the practice of law. See McDonald at p. 29.

  1. The court observed that Lathrop and Keller rest on unfirm ground because they are premised on “cases governing union membership and dues.” The court noted that the SCOTUS “has since either overruled those union cases or seriously called their reasoning into question.” As a result, their “weakened foundations . . . counsels against expanding their application as we consider various questions the two cases left open.” Id. at p. 10.
  2. A few examples: the LSBA has spent bar dues to advocate for or against bills that provide for the reduction of the jury trial threshold (2020); provide for the carrying of concealed handguns on school property (2018); provide for out-of-state insurance coverage (2018); authorize electronic delivery of insurance coverage notices (2018); provide relative to bullying (2018); provide a limitation of liability for landowners who grant a right of passage to cemeteries (2016); amend provisions relative to midwifery licensing (2012); provide for the administration of auto-injectable epinephrine by a school nurse (2012); provide relative to oyster leases (2011); provide relative to the rehabilitation of injured employees (2010); limit civil liability for persons using automated external defibrillators (2009); provide civil immunities for certain volunteers working in coordination with the state or its political subdivisions as relates to homeland security (2009); and, limit civil liability of health care providers and personnel during a declared emergency (2009). For more examples, see Amicus Curiae Brief to SCOTUS of Pelican Institute for Public Policy in Support of Petitioners in Crow v. Or. State Bar (filed Jul. 2, 2021).
  3. California’s bar is a “hybrid system” because its association is “an arm of the California Supreme Court” and is responsible for licensing, regulating, and disciplining lawyers. Thus, it engages in these regulatory functions in addition to supporting the legal profession and the promoting the availability and quality of legal services. See State Bar of California Website, About Us, Our Mission found at Our Mission: What We Do (ca.gov).
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