Federal court strikes down Louisiana’s mandatory bar association fees

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(The Center Square) — A federal court ruled this week that Louisiana can’t force attorneys to pay mandatory bar association dues for activities not “inherently connected” to regulating or improving the legal profession.

The U.S. Court of Appeals for the 5th Circuit sided with New Orleans attorney Randy Boudreaux in a ruling Tuesday that upheld his First Amendment right not to be forced to subsidize and associate with the Louisiana State Bar Association’s “nongermane” activities.

“I’m pleased that the 5th Circuit takes the freedoms of speech and association seriously,” Boudreaux said, adding that he hopes “professionals will enjoy more autonomy from compelled associations” due to the ruling.

The case centers on LSBA activities that go beyond its core function of regulating the state’s 20,000 attorneys, all of which are required by the state to join the privately run bar association. Louisiana is among a dozen states that mandate bar association membership.

The ancillary activities, known as “nongermane” activities, involve everything from advocating public policy positions to encouraging religious observations to promoting charities, to life coaching, and other often politically controversial activities beyond the scope of regulating lawyers.

“The House of Delegates (the LSBA’s policymaking body) had a Legislation Committee, which adopted formal ‘policy positions’ on proposed policies and pending bills in the state legislature,” the ruling notes. “Though some of those bills implicated the legal profession, they primarily regulated the public.

“To name just a few, the LSBA took positions on anti-discrimination laws for LGBT individuals, compliance with a state equal pay act, a rewriting of the state’s high school civics curriculum, a moratorium on executions in Louisiana pending certain criminal justice reforms, licensure of midwives, and concealed carry by school officials.”

Boudreaux did not want to be forced to associate with the LSBA’s mostly left-leaning policy positions or other speech and activities he doesn’t support, and he filed a federal lawsuit in 2019 with the help of the Pelican Institute Center for Justice, Goldwater Institute, and Loyola College of Law professor Dane Ciolino.

The case was initially dismissed by a district court, which found Boudreaux’s freedom of association claim was barred by Supreme Court precedent. While the LSBA ceased many nongermane activities in the wake of a 5th Circuit ruling on similar issues in Texas, the same court found the LSBA continued with some activities in violation, involving health and wellness issues, technology and safety announcements, and promotions of “LGBT Pride Month,” among others.

Citing a promotion of an article about student loan policy and social media posts celebrating Pride Month, the judges found the LSBA’s “mandatory membership policy violates Boudreaux’s rights to free speech and free association.”

“Randy’s principled pursuit of free association and free speech led to a major victory for both in the Fifth Circuit – we were honored to stand beside him in that battle every step of the way and look forward to the day even lawyers can be free,” Pelican Institute Attorney James Baehr said.

The Fifth Circuit ultimately remanded the case to the district court “for a determination of the proper remedy and for proceedings not inconsistent with this opinion, although we take no position on the proper injunctive or declaratory relief,” Tuesday’s ruling read. “We also render a preliminary injunction preventing the LSBA from requiring Boudreaux to join or pay dues to the LSBA pending completion of the remedies phase.”

“Attorneys like Randy Boudreaux should never be forced to subsidize speech they don’t support as a condition of practicing law, and this week’s ruling goes a long way toward reinforcing lawyers’ First Amendment freedoms,” Goldwater Senior Attorney Scott Freeman said.

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