No forced activism for attorneys

A state can’t require attorneys to participate in a bar association if it engages in political activism that isn’t relevant to the legal profession. That’s the upshot of an appeals court ruling striking down Texas’ mandatory membership requirement.

A three-judge panel of the 5th U.S. Circuit Court of Appeals on July 2 unanimously concluded that the requirement violated attorneys’ First Amendment right to freedom of association and freedom of speech. The Texas State Bar engaged in activities such as lobbying to change the definition of marriage.

“The membership is part of the message,” wrote Circuit Judge Jerry E. Smith, a Reagan appointee. “Compelling membership, therefore, compels support of that message.”

Smith concluded that state bars can require membership only if they limit their activities to matters at the heart of the legal profession, such as providing free aid to clients in need.

But the ruling didn’t go as far as the plaintiffs wanted. The three Texas attorneys who filed the civil rights lawsuit in March 2019 argued all lobbying fell outside the state bar’s core functions. They also claimed diversity initiatives and representing undocumented immigrants was ideologically motivated. Smith found those arguments unpersuasive: “There is no reason to believe that facilitating lawyers’ representation of aliens in navigating immigration laws constitutes an endorsement of any particular viewpoint about those statutes.”

A few days earlier, the appeals court reinstated attorney Randy Boudreaux’s lawsuit challenging Louisiana’s bar membership mandate and ordered a district court judge to take another look at its January 2020 dismissal.

The 31 states, plus the District of Columbia, that require membership in a state bar have faced challenges over controversial rule changes or lobbying. The American Bar Association sparked considerable opposition after adopting a model rule in 2016 broadening the definition of attorney misconduct. The rule prohibits anything the attorney “knows or reasonably should know” constitutes harassment or discrimination based on a host of characteristics, including sexual orientation and gender identity.

Attorney Dan Gibson is leading opposition to the North Carolina mandatory bar adopting the ABA rule. He said if it did, he “wouldn’t be surprised” if a lawsuit challenges the membership mandate or the state’s Republican-led legislature addresses it.