5th Circuit Rules Texas Lawyers’ First Amendment Rights Violated by Mandatory Bar in Texas

On Friday, July 2, 2021, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of three Texas attorneys who filed a civil rights lawsuit alleging that mandatory registration with the State Bar of Texas violated their First Amendment rights. The lawyers claimed that their rights were violated due to the State Bar of Texas’s engagement in political and ideological activities not germane to the interests in regulating the legal profession.

The State Bar of Texas is mandatory, meaning that all licensed Texas attorneys must join the State Bar of Texas. In addition to membership, attorneys are required to pay membership fees, ranging from $50 to $235. The State Bar of Texas undertakes a number of different initiatives, which the plaintiffs in the case describe as “political and ideological activities that extend far beyond any regulatory functions.” The case before the 5th Circuit outlined four initiatives: (1) the State Bar of Texas’s legislative program, whereby the Bar lobbies for “bills drafted by sections of the State Bar;” (2) the Bar’s housing of an Office of Minority Affairs, which serves minorities, women, and LGBT attorneys and legal organizations in Texas; (3) the Bar’s financial support of activities aimed at making legal services available to the needy; and (4) the Bar’s other miscellaneous activities, such as hosting an annual convention, funding continuing legal education programs, and funding the Texas Bar Journal.

The three plaintiffs in the case filed their lawsuit under 42 U.S.C. ยงยง 1983 and 1988, setting forth three theories: “(1) Compelling the plaintiffs ‘to join, associate with, and financially support the State Bar as a precondition to engaging in their chosen profession’ violates their ‘rights to free speech and association’; (2). . . requiring them to ‘subsidize political and ideological activities that extend beyond the Bar’s core regulatory functions’ violates their right to free speech; and (3). . . ‘[t]he Bar’s procedures for separating chargeable and non-chargeable expenses are inadequate to protect’ their First Amendment rights.”

The Fifth Circuit looked to the Supreme Court’s rulings in Lathrop v. Donohue, 367 U.S. 820 (1961) and Keller v. State Bar of California, 496 U.S.1 (1990), to assess the plaintiffs’ First Amendment claims. “Lathrop held that lawyers may constitutionally be mandated to join a bar association that solely regulates the legal profession and improves the quality of legal services,” while “Keller identifies that Lathrop did not decide whether lawyers may be constitutionally mandated to join a bar association that engages in other, non-germane activities.” The Fifth Circuit ruled that “compelling a lawyer to join a bar association engaged in non-germane activities burdens his or her First Amendment right to freedom of association.” The appeals court reasoned that even bar associations also engaging in non-germane activities will likely be engaging in additional expressive activities that support a ideology or message. Thus, compelling membership compels support of the message.

With regard to the examples of the State Bar of Texas’s initiatives, the Fifth Circuit ruled that the legislative program “is neither entirely germane nor wholly non-germane.” Because some of the legislative program is non-germane, compelling the plaintiffs to join the State Bar of Texas violated their freedom of association rights. With regard to the diversity initiatives through the Office of Minority Affairs, the Fifth Circuit ruled that the initiatives are germane to the purposes outlined by Keller, and thus are not a basis for ruling in favor of plaintiffs. With regard to the State Bar of Texas’s attempts to provide legal services to the needy, the Fifth Circuit ruled that the interest was germane to both regulating the legal profession and improving the quality of legal services. As far as the miscellaneous activities, the Fifth Circuit found all the stated activities to be germane. Therefore, compelling the plaintiffs to subsidize the State Bar of Texas’s non-germane activities violated the lawyers’ freedom of speech.

The Fifth Circuit rendered partial summary judgment in favor of the plaintiffs and remanded the case for the lower court to determine the full scope of relief to be granted to the plaintiffs. The appeals court further rendered a preliminary injunction for the plaintiffs, preventing the State Bar of Texas from requiring the plaintiffs to join or pay dues pending completion of the remedies phase.

Additional Reading

Mandatory bar in Texas violates lawyers’ First Amendment rights, 5th Circuit rules, ABA Journal (July 6, 2021)

McDonald v. Longley, No. 20-50448 (5th Cir. 2021)

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