Louisiana lawyers could soon be freed from mandatory membership in the State Bar Association, after a pair of federal court rulings that threaten to weaken the group’s influence at the state Capitol.
The 5th U.S. Circuit Court of Appeals on Friday reopened a First Amendment case brought by New Orleans attorney Randy Boudreaux, who challenged the Louisiana Supreme Court’s requirement that all of the 20,000-plus lawyers licensed in the state be dues-paying bar members. Boudreaux, an insurance defense lawyer, argues that mandatory membership violates his constitutional rights of free speech and free association because the bar takes political positions; he opposed the use of his dues, about $200 annually for most lawyers, for lobbying and other political activity.
A three-judge panel of the appeals court didn’t say that those lawyers don’t have to be bar members, but it ruled the bar association failed to disclose its activities properly. That reversed a 2020 ruling by U.S. District Judge Lance Africk, whom President George W. Bush nominated to the bench and who had dismissed Boudreaux’s arguments.
At the same time, the 5th Circuit panel issued a preliminary injunction against the Texas bar requiring lawyers to join or pay dues while that case plays out. In Texas, the court found, the bar engaged in activities unrelated to regulating the legal practice, such as lobbying to amend the definition of marriage and to create civil unions in the state constitution.
The court gave Texas options:
- Stop engaging in “non-germane” activities
- Create a voluntary bar association
- Adopt some kind of hybrid, as it said California has done.
Boudreaux’s attorney, Dane Ciolino, said the situation is similar in Louisiana, and that he expects a like outcome. “I would hope in fairly short order we’ll get an order temporarily prohibiting the Louisiana Supreme Court from forcing lawyers to join” the Louisiana State Bar Association, Ciolino said.
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He argued that the Louisiana bar frequently engages in political or ideological initiatives that “have nothing to do with the practice of law.”
In a recent amicus brief filed by the Pelican Institute of Public Policy in an Oregon case before the U.S. Supreme Court, Ciolino cited positions taken by the Louisiana bar on more than 500 legislative bills since 2007. In particular, he cited the association’s activism in lobbying against “tort reform” in the Legislature.
In his challenge, Boudreaux opposed the bar’s advocacy against executions, for changes to the high school civics curriculum and against letting school personnel carry guns on campus.
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Thirty-one states, including Louisiana, require practicing attorneys to become members of their state bar associations. In some states, the associations discipline attorneys for misconduct; in Louisiana, discipline is left to the state Supreme Court.
Minor Pipes III, president of the Louisiana bar association, said Friday that bar leadership was still reviewing the court’s ruling. He argued that the association does “very little” lobbying and that it has “strict rules that stop us from getting into ideological issues.”
But Pipes acknowledged that the state Supreme Court might be required to change the rules. The 5th Circuit sent the case back to Africk for now.
“We’re disappointed with the decision, but we’ll obviously abide by what the ultimate decision is,” Pipes said.
The case is one of several similar ones that are now wending their way through federal courts. The 5th Circuit called them “bar wars.”
The Goldwater Institute of Arizona, a libertarian think tank, is backing related litigation in other states. In Louisiana, it teamed with the Pelican Institute.
The groups argue that a recent Supreme Court ruling, which bars public sector unions from forcing members to pay dues that might fund political lobbying efforts opposed by the members, should also apply to bar associations.
In Boudreaux’s case, the 5th Circuit ruling was written by Judge Don Willett of Austin, Texas, an appointee of President Donald Trump. Joining the opinion were Judge Jerry Smith of Houston, an appointee of President Ronald Reagan, and Kyle Duncan of Baton Rouge, another Trump appointee.