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Court tells bar association to stay in ‘prescribed lane’

By: Associated Press//November 20, 2023//

FILE - A man walks in front of the 5th U.S. Circuit Court of Appeals, Jan. 7, 2015, in New Orleans. A Louisiana lawyer who objected to the state bar association’s public statements on a variety of issues, from simple health tips to LGBTQ rights, can no longer be forced to join or pay dues to the association, the 5th U.S. Circuit Court of Appeals ruled Monday, Nov. 13, 2023. (AP Photo/Jonathan Bachman, File)

Court tells bar association to stay in ‘prescribed lane’

By: Associated Press//November 20, 2023//

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NEW ORLEANS — A Louisiana lawyer who objected to the state bar association’s public statements on several issues, including health tips and LGBTQ rights, can no longer be forced to join or pay dues to the association, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals order, dated Monday, blocks the Louisiana State Bar Association from forcing attorney Randy Boudreaux to join the LSBA or pay its dues, at least for now.

The ruling sends the case back to a federal district judge for further action. It appears to leave open the possibility that mandatory membership and dues could be imposed on Boudreaux, if the LSBA no longer takes public positions deemed “non-germane” to the regulation of the legal profession.

Boudreaux’s is one of more than two dozen cases playing out around the country challenging state requirements that attorneys join and pay dues to state bar associations. Organizations including the Goldwater Institute and, in Louisiana, the Pelican Institute, are challenging mandatory bar association membership as violations of free speech rights.

The 5th Circuit ruled in 2021 — in cases out of Louisiana and Texas — that mandatory bar membership can be seen as constitutional under current law and Supreme Court precedent if the bar association is engaged in funding or lobbying for activities that are germane to the regulation of the legal profession or improvement of legal services.

Since then, Monday’s ruling said, LSBA has failed to stay “in its constitutionally prescribed lane.”

“To its credit, the LSBA has stopped much of its objectionable activity,” Judge Jerry Smith wrote for the panel of three judges in the latest ruling. “But despite the LSBA’s scruples, Boudreaux has still identified some examples of non-germane speech.”

Non-germane statements included posts on Twitter — now known as X — on topics including the possible health benefits of walnuts, the need for exercise and the promotion of charitable events, and more contentious issues. The association’s promotion of an article on the effects of student loan debt on young lawyers was not germane, the court found. “If anything, the thrust of the article is backhanded support for student-debt relief, a nakedly political position,” Smith wrote.

The opinion also agrees with Boudreaux’s objections to the bar association promoting a link to a History.com article about gay rights, along with a large rainbow flag icon that read “LGBT Pride Month.”

The association “can promote inclusion of LGBT individuals in the legal profession — we held that Texas could do that, even if was controversial,” Smith wrote. “But the LSBA may not promote LGBT causes generally, with no connection to the legal profession.”

LSBA President Shayna Sonnier said the group was pleased that the appeals court recognized steps it has taken to meet constitutional standards. “Our leadership is reviewing how best to address the issues identified by the court,” she said.

It was unclear whether either side would appeal any part of the Monday appellate ruling sending the case back to the district court. Scott Freeman, an attorney with the Goldwater Institute, said efforts continue in multiple jurisdictions to fight mandatory bar association membership.

“I expect that the LSBA will argue that it won’t offend again if compulsory membership continues,” New Orleans attorney Dane Ciolino, part of the legal team supporting Boudreaux, said in emailed statements. “But it has said exactly that before and thereafter failed to comply with the First Amendment.”

Smith was nominated to the 5th Circuit by former President Ronald Reagan. Also on the panel were Judge Carolyn Dineen King, nominated by former President Jimmy Carter, and Jennifer Walker Elrod, nominated by former president George W. Bush.

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