The common misconception that rulings limiting the speech activities of state bar associations also prohibit those activities was discussed at length in the decision of a case on November 13 by the US Court of Appeals for the Fifth Circuit. The case, Boudreaux v. Louisiana State Bar Association, did not prevent mandatory bars from speaking out on important matters, contrary to how some have interpreted it.
Instead, it provides a firm foundation for state bars to weigh in on serious subjects such as the rule of law, democracy, and free and fair elections—all issues fundamentally associated with legal practice. The ruling aligns with the Fifth Circuit court’s decision in 2021 regarding the Texas State Bar.
The Boudreaux case adds to the substantial body of case law interpreting the 1990 US Supreme Court decision in Keller v. State Bar of California. In Keller, it was ruled that the valid expression activities of mandatory bars should be “germane” to the objectives of governing the legal profession and enhancing the quality of legal services. Bar associations expressing opinions on non-germane subjects must arrange a mechanism to refund portions of member dues who object.
The Boudreaux ruling details a set of subjects considered non-germane by the court: “Wellness Wednesdays,” iPhone software updates, Christmas and Halloween charity drives, the effects of student debt on young lawyers, and the displaying of an LGBT pride flag.
Evidently, Boudreaux reiterates several earlier Fifth Circuit rulings that clarify misconceptions of Keller. Notably, it emphasizes that even state bars are allowed to engage in political lobbying, provided it relates to germane topics, regardless of how ideological, controversial, or political the subject may be.
According to the Fifth Circuit, actions that wish to “diversify the legal profession for minority, women, and LGBT attorneys” are germane. This is despite the controversial and ideological nature of these diversity initiatives. Because such actions are “tied to the diversity of lawyers” and therefore inherently “tied to the quality of legal services,” they are deemed germane.
As a result of the Boudreaux decision, state bars are encouraged to advocate for values such as the rule of law and democracy, which are unfortunately becoming highly politicized. Lawyers must thus make their voices heard regarding these foundational principles, as they are now under unprecedented attack. Indeed, the Fifth Circuit’s ruling in Boudreaux should support, not impede, this response. This discussion draws on Jamie Conrad’s analysis, who is the owner of Conrad Law & Policy Counsel and a volunteer for Lawyers Defending American Democracy. His LinkedIn profile offers further insight on the topic.