Court of Appeals for the Fifth Circuit holds that certain social media posts by the Louisiana Bar Association violated the First Amendment

Last week, the US Court of Appeals for the Fifth Circuit ruled that the Louisiana State Bar Association (LSBA) violated the US Constitution’s First Amendment when it tweeted several posts that were not “germane” to the legal profession. Since membership in the state bar is required for US lawyers to practice within the state, the court held that the bar’s communications must be related to the legal profession.  Jurist has more on this story here.

This ruling is consistent with older cases on the subject and with recent decisions in a number of jurisdictions that go even further holding that mandatory bar membership is, itself, unconstitutional.  I have reported on this subject before many times.  Go here and scroll down for the latest.

Arizona Senate approves bill to eliminate mandatory bar membership

The Arizona Senate recently approved a bill that "prohibits the Supreme Court from requiring an attorney to be a member of any organization in order to become or remain a licensed attorney in Arizona."

You can read a summary of the bill here.

Court of Appeals for the 7th Circuit upholds mandatory bar in Wisconsin

 One of the most debated issues in the Professional Responsibility arena in the past year has been whether states can force lawyers to join a bar association, or, in other words, whether it is a violation of a lawyer's constitutional rights to be forced to become a member of a bar association as a pre-requisite to practice law in the jurisdiction.  I have been posting updates on cases from around the nation on this for over a year.  See here, and scroll down for all the stories (from Texas, Michigan, Oregon and Utah, among others).  

Today I am writing with an update related to the rules in Wisconsin.  

The Seventh Circuit recently upheld a ruling against an attorney challenging rules enforced by the Wisconsin Supreme Court requiring all lawyers licensed to practice in the state to be members and pay dues to the state bar.  

The opinion of the court starts with a summary, as follows:

Under rules adopted and enforced by the Wisconsin Supreme Court, all lawyers licensed to practice in the state must be members of and pay dues to the State Bar of Wisconsin, a professional association created by the court. Attorney Schuyler File contends that requiring him to join and subsidize the State Bar violates his free speech and associational rights under the First Amendment.  Recognizing that Supreme Court precedent forecloses this claim, see Keller v. State Bar of Cal., 496 U.S. 1 (1990), File maintains that the Court’s more recent cases—particularly Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018)—implicitly overruled Keller. 

The district court rejected this argument, and properly so. Keller may be difficult to square with the Supreme Court’s more recent First Amendment caselaw, but on multiple occasions and in no uncertain terms, the Court has instructed lower courts to resist invitations to find its decisions overruled by implication. Keller is binding. We affirm.

You can read the full opinion here. 

Supreme Court will not review decision that found the Texas mandatory bar system unconstitutional

Back in July of 2021 I reported that the Court of Appeals for the Fifth Circuit ruled that the mandatory bar system used in Texas was unconstitutional.  See here and here.

I am writing about this again today because Bloomberg Law is reporting that the U.S. Supreme Court just announced that it will not review this ruling.  See here.

For other posts on challenges to mandatory bar systems go here and scroll down.

Texas state bar faces new challenge over membership requirement to state bar association

The ABA Journal is reporting that the State Bar of Texas is facing a new lawsuit claiming that it has continued to require lawyers to join and pay dues, despite a recent federal appeals court ruling finding that the practice violated their First Amendment rights.  You can read the ABA Journal article here.  You can read the complaint here.  In it, the plaintiffs allege that the State Bar Association has ignored a ruling of the Court of Appeals for the 5th Circuit.  I wrote about that ruling here and the ABA has a story on it here.

Sixth Circuit rejects a challenge to Michigan's mandatory membership requirement

 Five days after I reported that the Court of Appeals for the Fifth Circuit held that the mandatory bar system used in Texas was unconstitutional, the US Court of Appeals for the Sixth Circuit rejected a challenge to the mandatory membership requirements imposed by the State Bar of Michigan. 

Jurist has the details here.

Court of Appeals for the Fifth Circuit finds that mandatory bar system used in Texas is unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  For my posts on this topic go here.

Today I am writing to report that the Court of Appeals for the Fifth Circuit recently invalidated the mandatory bar system used in Texas finding that because the State Bar of Texas engages in political activities that fall outside the scope of the interests of all its members, it cannot force attorneys to join it and pay mandatory dues.  But the court also provides some options to remedy the problem.  As the court explains:

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

The case is called Mcdonald v.  Longley and you can read the opinion here.  

Courthouse News Service has more information here.  The Louisiana Legal Ethics Blog has commentary and a link to the opinion here.

Supreme Court reviewing cert petition in mandatory bar membership case

In the last couple of years we have seen a number of challenges in different states to mandatory bar membership rules.  I have posted a few stories on the subject here.

Back in June 2020, the US Supreme Court denied review to a case attacking the rule in Wisconsin. The Court had also declined to grant review in cases involving the state bar in North Dakota.

Yet, I just heard that the Court is in the process of deciding whether to review the question based on a constitutional challenge to Oregon’s mandatory bar membership and dues.  

Stay tuned!

Lawyer in Utah files lawsuit challenging mandatory bar association membership

One recurring story last year was the number of lawsuits filed throughout the country challenging the authority of states to mandate membership in bar association groups in order to be allowed to practice law.  Go here and scroll down for the stories I posted on this topic.  Typically, the claims are based on the fact that the bar association supports causes the individual complaining member would rather not.

Well, it happened again.  Courthouse News Service is reporting that a Utah attorney has sued the state bar association claiming it spent mandatory dues on political and ideological speech she disagrees with in violation of her First and 14th Amendment rights.

At last count, I have heard of current challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.  The Wisconsin challenge was defeated and the Supreme Court denied cert.  The Oregon case was recently remanded by the Court of Appeals.  I do not know the status of the others.

Ninth Circuit Sends Mandatory Bar Membership Question Back to Lower Court

 Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. (Go here for my most recent post on the issue, which has links to more posts.)

I am writing about this again today because a few days ago, Courthouse News reported that the Oregon case that had been making its way up the courts has been remanded to the lower federal court for trial. The case raises the issue of whether the Oregon State Bar can require a lawyer to join the State Bar Association, if the lawyer objects to the Association's political commentary.

The case was filed lawyers who objected to commentary published in the Bar Association's newsletter.  When the lawyers objected, the Association refunded $1 and change to the lawyers, arguing that was the amount their membership fees contributed to the publication of the newsletter.  Back in December 2018, the lawyers responded by filing the lawsuit.  

The case was dismissed by the lower court, and on appeal, a three-judge panel of the Ninth Circuit agreed with the dismissal of all of the claims except the one on the basis of the right to free association.  

You can read the opinion here.

US Supreme Court denies review of mandatory bar membership case

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  See here and here for example.  My most recent post on this was on the case from Wisconsin in which two Wisconsin attorneys argued that a requirement to be members of the bar association and pay dues violated their First Amendment rights. See here.

Last Monday, the US Supreme Court on Monday denied a request to hear that Wisconsin case.  Justices Thomas and Gorsuch dissented.

For more on the story go to the SCOTUS blog, here, and to Courthouse News Services, here.  Jurist has a short report here.

Wisconsin: mandatory bar membership is not unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. 

Today I am here to report that we now have a decision on the subject.  About two seeks ago, the State Bar of Wisconsin won dismissal of a suit alleging its requirement that attorneys pay bar dues to practice in the state unconstitutionally compels them to participate in the state bar’s advocacy.  The case is called Jarchow v. State Bar of Wis. and you can read it here.

Rather than address the issues head on, however, the court held that U.S. Supreme Court precedent requires dismissal of the plaintiffs’ First Amendment challenge. It cited a 1990 opinion in which the high court upheld similar requirements imposed by the California bar against free speech and free association challenges.  The trial court said it’s bound by the 1990 decision, and only the Supreme Court can say otherwise. “Plaintiffs must seek relief in a higher court,” it said.

Update on challenges to mandatory bar association membership around the country

As I have written before, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Court of Appeals for the Eighth Circuit rules that State Bar Association of North Dakota's Mandatory Membership Fees Do Not Violate First Amendment

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota.  (For some of my recent posts and links on this go here, here, and here).

Today's news is that on August 30, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit found that the North Dakota bar's procedures for collecting mandatory membership fees do not violate the First Amendment.  The case is called Fleck v. Wetch.