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Status of Integrated Bar Challenges


On November 13, 2023, the U.S. 5th Circuit Court of Appeals released its opinion in Boudreaux v. Louisiana State Bar Association, Case No. 22-30564 (“Boudreaux II”). The Court reconfirmed that the LSBA can continue to operate as a mandatory bar association provided that it confines its programming to constitutionally germane activities. “If a bar’s speech activities are germane, then there is no free association or free speech problem with compulsory membership.” Id. at 9. The Court further recognized that “the LSBA has ceased all the conduct that Boudreaux originally challenged.” Id. at 11. But the Court noted that the plaintiff still had identified “some examples of non-germane speech.” Id. at 2.

President Shayna Sonnier commented: “We are pleased the Fifth Circuit affirmed key parts of the district court’s opinion, recognizing the steps the LSBA has taken since McDonald to ensure compliance with constitutional standards and provide procedural protections for its members. The Court nevertheless found concerns with some of the LSBA’s charitable, informational, and wellness-related speech activities and programs. The LSBA will continue its mission to serve attorneys and the public through the regulation of the legal profession and improving the quality of legal services through its activities and programming.”

In reviewing the new examples identified by the plaintiff, the Court found some of these to be germane, and some non-germane. Specifically, the Court reviewed and decided that “the LSBA’s policy positions [as adopted by the House of Delegates] are directly related to the regulation of the legal profession and the provision of legal services” and are “therefore lawful”. Id. at 16. On the other hand, the Court found that certain minor programming activities were not sufficiently connected to the regulation of lawyers or improving legal services, and therefore not germane. The non-germane activities included: “Wellness Wednesday tweets”, technology and safety announcements, tweets promoting community-engagement opportunities such as the “Red Mass”, holiday charity drives for Christmas (Secret Santa) and Halloween (Ween Dream), a link to a Reuters article discussing the effects of student loan debt on young lawyers, and a link to a History.com article about gay rights during Pride Month. That is the entire scope of what the Fifth Circuit found to be non-germane.

The LSBA is governed by Supreme Court Rule XVIII Sec. 6, which requires the LSBA to limit its activities to constitutionally germane activities. With the clarifications of the germaneness standards set forth in Boudreaux II, LSBA leadership will ensure that the disallowed programming will no longer be part of the LSBA’s activities. Other non-LSBA groups have expressed interest in continuing these initiatives to serve those communities who were and still are in need of these efforts.

Finally, the plaintiff also challenged the LSBA’s Hudson procedures, i.e., the constitutionally required procedures for members to object to activities or speech they feel is not in keeping with the standards established by the Court. The Court rejected this claim and found that the LSBA’s notice and objection procedures “are constitutionally adequate”. Id. at 29 n.16.

While we regret that some of our LSBA programming “veer[ed]” from the course of constitutional germaneness, the LSBA is committed to fulfilling its mission of assisting lawyers and the public through efforts to regulate the profession and improving the quality of legal services, and will do so in compliance with the constitutional standards that have been established by the courts.

 

Prior Proceedings

On August 8, 2022, the Honorable Lance M. Africk of the U.S. District Court for the Eastern District of Louisiana issued a ruling dismissing the lawsuit filed by an attorney against the Louisiana State Bar Association, the Louisiana Supreme Court, and, in their official capacities, the Justices of the Louisiana Supreme Court.

The Court ruled that the LSBA can communicate with its members regarding wellness initiatives, the opportunity to participate in holiday charitable drives, and optional non-LSBA events that may be of interest to members of the legal profession because these activities are germane to the LSBA’s purposes of regulating the legal profession and improving the quality of legal services. The Court ruled in the alternative that these activities are not a “major activity” of the LSBA such that they could give rise to any constitutional violation.  The Court concluded the plaintiff’s challenges to the LSBA’s former legislative activities are moot given the passage of Louisiana Supreme Court Rule XVIII, Section 6 and the measures taken by the LSBA to ensure compliance with existing precedent.  Finally, the Court ruled that the LSBA’s procedures provide members with sufficient notice of its activities and an opportunity to object.

The U.S. 5th Circuit Court of Appeals on July 2, 2021 remanded the Boudreaux case back to the U.S. District Court for the Eastern District of Louisiana because the 5th Circuit disagreed with the application of the Tax Injunction Act and opined that dismissal of the freedom of association claim was premature. The Court in its opinion detailed Lathrop v. Donohue and Keller v. State Bar of California, the two Supreme Court cases upholding the constitutionality of mandatory bars. Specifically, it addressed Keller’s distinction between “germane” and “non-germane” to identify bar activities for which use of mandatory dues is permissible. The 5th Circuit’s opinion went so far as to recognize that the LSBA may not have engaged in any non-germane activity and that discovery is necessary to make that determination. On July 26 plaintiff Randy Boudreaux filed a Motion for Preliminary Injunction asking that he not have to pay LSBA dues during the pendency of his action. “The LSBA for years has focused on ensuring that its activities and expenditures are germane to regulating or improving the legal profession,” said LSBA President H. Minor Pipes, III. “Although we would have preferred an affirmation from the 5th Circuit, we are confident that the courts will confirm that our procedures safeguard against the Bar engaging in political and ideological activities. While we await further guidance from the Eastern District we will continue to work for the lawyers of Louisiana through our regulation of the practice of law and myriad member services and programs.”

Moreover, the U.S. 5th Circuit Court of Appeals on July 2 reversed and remanded the McDonald case back to the U.S. District Court for the Western District of Texas. The 5th Circuit granted summary judgment and a preliminary injunction to the plaintiffs in McDonald on the basis that, based on the record developed in that case, the Texas bar engaged in non-germane speech and had inadequate Keller procedures. The 5th Circuit remanded to the district court to conduct the remedies phase. The 5th Circuit’s opinion described numerous activities by the Texas bar and concludes that only some of them were non-germane under constitutional standards. While the McDonald case did not involve the LSBA, the 5th Circuit panel in Boudreaux did rely on the McDonald holding to find that Mr. Boudreaux had stated a claim for relief.

The House of Delegates, at its meeting on January 22, 2022, took the following action:

Immediately following the Fifth Circuit’s July 2021 opinion, the Board of Governors, using the emergency authority granted to it in the Bylaws, voted to suspend the Legislation Committee and all legislative activities until the January 2022 House of Delegates meeting.

Louisiana State Bar Association
601 St. Charles Avenue
New Orleans, LA 70130
(800) 421-LSBA(5722) / (504) 566-1600