For some, the only thing that matters is whether the “non-germane” causes to which the State Bar of Texas, or anywhere else for that matter, are “good.” Agree with the bar using its juice to push for a cause and, well, what could be wrong? So what if it has nothing to do with the purposes for which the bar association exists, the regulation of lawyers and the improvement of the quality of legal services. After all, aren’t lawyers supposed to stand for truth, justice and the American way?
In McDonald v. Longley, the Fifth Circuit said no. If you want to join your brethren (sistren?) at the bar in supporting a cause, by all means do so. Form a group. Charge dues if you want. Send letters, write laws, march in circles. Do whatever you want to do. But what you cannot, you should not, do is make that a cause of a state mandatory bar association, to which every lawyer must be a member and pay dues if they want to be licensed to practice law in that state, if it is not germane to the purpose for which the bar association’s authority to compel membership and payment exists.
For groups that engage in expressive association, the “[f]reedom of association … plainly presupposes a freedom not to associate.” Those groups have a right to restrict their membership, because the membership is the message. Individuals have an analogous right to “eschew association for expressive purposes.” That right is part and parcel of the “cardinal constitutional command” that the government may not compel “individuals to mouth support for views they find objectionable.”
Based on 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. Such a bar association would invariably be engaged in expressive activities. Even bar associations that engage in only germane activities undertake some expressive activities; for example, proposing an ethical rule expresses a view that the rule is a good one, and commenting on potential changes to the state’s court system, … expresses a view that such a reform is a good or bad idea.
Bar associations that also engage in non-germane activities will almost certainly be engaging in additional expressive activities that “support … a particular conception of the good life or controversial ideology of the good society.” And, when a bar association does so, part of its expressive message is that its members stand behind its expression. The membership is part of the message. Compelling membership, therefore, compels support of that message. If a member disagrees with that “conception of the good life or controversial ideology,” then compelling his or her membership infringes on the freedom of association.
At stake isn’t your conception of good and evil, right and wrong, but your authority to impose your call for Utopia on anyone else. You may be right. They may be wrong. But they’re entitled to be disagree, and you can’t compel them to finance your views.
There is, of course, the question of what is “germane” to the practice of law.
Except as stated below, advocating changes to a state’s substantive law is non-germane to the purposes identified in Keller. Such lobbying has nothing to do with regulating the legal profession or improving the quality of legal services. Instead, those efforts are directed entirely at changing the law governing cases, disputes, or transactions in which attorneys might be involved. Lobbying for legislation regarding the functioning of the state’s courts or legal system writ large, on the other hand, is germane. So too is advocating for laws governing the activities of lawyers qua lawyers.
Judge Jerry Smith offers examples of “causes” which are “obviously” not germane.
For example, the Bar’s lobbying to amend the Texas Constitution’s definition of marriage and create civil unions is obviously non-germane. The Bar’s presumably less-controversial proposed substantive changes to Texas family law are equally non-germane. The Bar’s lobbying for the “creation of an exemption regarding the appointment of pro bono volunteers,” on the other hand, is germane, because it relates to the law governing lawyers. Its lobbying for changes to Texas trust law is germane to the extent the changes affect lawyers’ duties when serving as trustees, and non-germane to the extent the changes do not.
Some will argue that they are germane as they produce “good” law, the “right” law in the face of laws they believe to be discriminatory, wrong, even unconstitutional. The point isn’t whether the bar association is fighting for things with which you agree or things you believe to be right. The point is that it doesn’t relate to the justification for compelling lawyers to be members and pay for it upon pain of their license to practice.
As has been discussed here, this is what killed the ABA, whose legacy might mean something to non-lawyers but which has teetered on the edge of bankruptcy as its members fled in droves as the ABA became increasingly woke. It was once the bastion of old-school Biglaw interests until it was captured by woke lawyers and academics who seized it as a platform to promote social justice. Most lawyers, it turned out, either didn’t agree or recognized that it lost its purpose and ran away as fast as they could.
But lawyers could choose not to be members of the ABA, a voluntary bar association. For Texas lawyers, they could not, as it was their regulatory authority and membership was mandatory. As reflected in the saga of State Bar president Larry McDougal, not even Texas lawyers were immune from conflating their ideology with their regulatory body. Or demanding their president adhere to the rhetoric of social justice orthodoxy, or else.
Can the lawyers and academics who have seized control of bar associations distinguish between germane and ideological? It would seem more likely that there will be howls of outrage and arguments ad nauseam before that happens. Maybe calls to pack the courts with reliably right-thinking judges will be next. Maybe shouts of racism and sexism will follow, as it must be true that any court that fails to grasp that nothing could be more germane to the practice of law than truth, justice and the American way.
For the moment, three lawyers in Texas no longer have to join or pay the State Bar dues, just as public employees can’t be compelled to tithe agency fees to a union which uses their money to fund a political candidate they don’t support. When the Supreme Court decided Janus, employees were freed from being compelled to pay for political speech. It was clear at the time that this same issue was implicated in the political activities of mandatory bar associations. You believe in what these bar associations are doing? Great. Believe all you want. Support whatever cause you support. Knock yourself out. But you can’t compel other lawyers who disagree to join you and pay for it. That is truth, justice and the American way.