Mandatory Bars Can Still Speak Out for Rule of Law After Decision

Each time a court sets limits on the speech activities state bar associations can engage in, the tendency is to assume—incorrectly—that bars are prohibited from these actions.

A Nov. 13 decision by the US Court of Appeals for the Fifth Circuit in Boudreaux v. Louisiana State Bar Association has been mischaracterized by some as a further restriction on the ability of mandatory bars to speak out on important topics.

Rather, the decision closely tracks that court’s 2021 decision involving the Texas State Bar. It provides state bars an even more solid basis for weighing in on subjects such as the rule of law, democracy, and free and fair elections—issues foundational to the practice of law.

Boudreaux is the latest major addition to the body of case law interpreting the US Supreme Court’s 1990 decision in Keller v. State Bar of California. In Keller, the justices limited the permissible expressive activities of mandatory bars to those that are “germane” to the goals of regulating the legal profession and improving the quality of legal services.

When state bars speak out on non-germane topics, they must have a mechanism to refund the relevant portion of dues paid by objecting members.

The Fifth Circuit’s Boudreaux decision has been highlighted for the variety of subjects that the court found not germane: “Wellness Wednesdays,” iPhone software updates, Christmas and Halloween charity drives, the effect of student debt on young lawyers, and display of an LGBT pride flag.

But Boudreaux is also notable for squarely reaffirming several prior Fifth Circuit holdings that dispel common misunderstandings of Keller. First, state bars are permitted to engage in political lobbying, so long as it is focused on germane topics. Second, it doesn’t matter how ideological, inflammatory, controversial, or political a topic may be—state bars are free to speak out if the topic is germane. Third, maintaining the public’s trust in the legal system writ large is germane.

The Fifth Circuit case also advances the body of Keller jurisprudence by offering a new standard for determining which activities are “germane.” To be permissible, activities must be “inherently about the practice of law or the legal profession more generally,” rather than having a “mere connection to a personal matter that might impact a person who is practicing law.”

So, for example, advice about software designed for attorneys’ use would be germane, as would publicizing legal pro bono opportunities, rather than generic charitable ones.

More important, the Fifth Circuit declared that initiatives seeking “to diversify the legal profession for minority, women, and LGBT attorneys” are germane despite “the controversial and ideological nature of those diversity initiatives” because they’re “tied to the diversity of lawyers” and therefore “tied to the quality of legal services.”

This standard, then, supports state bar activities directed to promoting topics that, unfortunately, have become highly politicized. The rule of law, for example, isn’t “a personal matter that might impact a person who is practicing law,” or something that improves “the practice of law indirectly.” The whole point of providing legal services is to protect and vindicate the rights of the lawyer’s client under law.

Without an independent judiciary, and a legal system that operates under the rule of law, lawyers would be restricted in their ability to provide quality legal services. Indeed, rendering such services would be impossible or futile.

Similarly, only a democratic society provides accountability that prevents government from twisting the legal system to its own needs. Advocacy in support of democracy is thus inherently about the practice of law, not just something that might impact a person practicing law.

Keller cases addressing voting and electoral issues, some of which are more than 30 years old, have generally held them to be non-germane. Viewed through the prism of Boudreaux and other more current cases, however, the freedom and fairness of elections inherently affects the legitimacy of the legal system writ large in which lawyers are officers, and from which they derive their exclusive license to practice. It’s not merely a personal matter impacting lawyers and others equally.

The concept of democracy necessarily presumes a functioning electoral process. Accordingly, if democracy is germane under Keller, there must be some level of state bar communication that is acceptable regarding the ability to trust in the constitutional right to vote and to have one’s vote counted.

Never has it been so necessary for lawyers to speak out on the vital importance of the rule of law, democracy, the Constitution, and protecting free and fair elections. Attacks on these foundational precepts are unprecedented and require a strong response from the legal profession. The Fifth Circuit’s decision in Boudreaux should help, not hinder, that response.

The case is Boudreaux v. Louisiana State Bar Association, 5th Cir., No. 22-30564, 11/13/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jamie Conrad is owner of Conrad Law & Policy Counsel, with focus on environmental and health & safety law, and is a volunteer for Lawyers Defending American Democracy.

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