June 28, 2021
Sept 12, 2022
Photo: AP Photo/Julio Cortez
Never before has it been so necessary for lawyers to speak out on the vital importance of: defending the rule of law, democracy, and the Constitution; protecting free and fair elections; and holding other lawyers accountable for violating their oath to uphold the Constitution. The purpose of this memorandum is to provide bar associations – in particular, mandatory state bars – with a memorandum to support the position that existing case law is not a prohibition against addressing these critical issues facing our democracy today.
Integrated bars can speak in defense of fundamental Constitutional principles, consistent with the Supreme Court’s decision in Keller v. California State Bar Association. Keller and case law interpreting it clearly establish that mandatory bars may speak out, and lobby, regarding issues that are “germane” to their core functions. The key question is whether the challenged expenditures are necessary for or reasonably related to either (i) regulating the legal profession or (ii) improving the quality of legal services available to the people of the state.
Bar statements should not run afoul of Keller simply because they have “apparent legal coloration,” or address “sensitive political topics” or topics “of an ideological nature” – although a bar may be wise to avoid casting issues in a needlessly “ideological manner.” Nor do bars need unanimity among their members before a position can be considered germane. And lobbying for germane purposes is permissible.
The standard of review for Keller claims is deferential, asking whether a state bar might reasonably believe that challenged expressive activities would assist in regulating the legal profession or improve the quality of the legal service available to the people of the State. A state bar is not required to prove that its expenditures were actually successful in accomplishing the stated purpose.
As evidenced in the summaries below, cases vary in the extent to which they specifically address the central issues of (i) legal ethics and accountability, (ii) the rule of law, (iii) democracy, (iv) the Constitution, and (iv) free and fair elections. Yet there are compelling arguments that each of these concepts is germane. To the extent that case law on a topic is sparse, that may well be because state bars have not previously found it necessary to defend these fundamental precepts of our legal system. But the attacks on democracy today are unprecedented, and require a strong response from the legal profession.
Ethics/Accountability. The first half of the Keller germaneness test is “regulating the legal profession.” Ethics investigations of lawyers who have violated their oath or applicable ethical rules, and the filing of related disciplinary complaints, are at the heart of what state bars can and should do under Keller. Indeed, this core function of state bars apparently has never been the subject of a reported case alleging that a bar has violated a member’s First Amendment rights.
Rule of law. As multiple cases have recognized, lawyers cannot provide quality legal services without a fair and functioning legal system that operates under, and supports, the rule of law. The ability to serve clients presupposes the existence of an independent judiciary in which people have trust and confidence, and that functions free from interference from the other branches of government.
Democracy. At least one reported case has declared that “vigorously promoting the law as the foundation of a just democracy . . . is germane.” Each can only exist together with the other. A democratic society provides accountability mechanisms that should prevent government officials from undermining the legal system for their own needs.
The Constitution. It appears that no court has yet had to opine on the germaneness of defending the Constitution. It should be undebatable, however, that fundamental to the ability of lawyers in the United States to provide quality legal services is a justice system that adheres to the Constitution. Indeed, the federal Constitution, and state constitutions, provide the foundational constructs on which our justice system depends and are the sources of critical rights that lawyers seek to protect on behalf of their clients.
Ensuring free and fair elections. The right to a free and fair election is foundational to our democracy. Moreover, the ability of lawyers to protect and vindicate people’s rights is grounded in an election process that people trust to duly elect individuals who are responsible for making the laws, and where the right to vote, and have one’s vote counted, exists for all. Although cases addressing the germaneness of bar association statements on election issues have generally found them to be non-germane, the courts issuing them were not facing threats of the scope and nature that exist today. State bars ought to be able to build on the long history of non-partisan efforts to protect the right to vote in speaking out against such threats.
Finally, it is important to note that mandatory bars can still speak out and lobby on non-germane topics so long as they provide an adequate process for objecting members to get a pro-rata refund of their dues. A bar can meet its First Amendment obligations if it provides members with “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.”
1. 496 U.S. 1 (1990).
2. Gruber v. Oregon State Bar, 2019 WL 2251826 (April 1, 2019) at *10, aff’d in part and rev’d in part sub nom. Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2021), cert. denied, 142 S. Ct. 79 (2021).