Patrick A. Guida
President, Rhode Island Bar Association
“For those approximately two-thirds of the States that are mandatory bar states, constant diligence must be observed in promoting bar association programs and initiatives.”
Many members have asked why our Bar Association does not take positions on every social or political issue that affects lawyers or society more broadly. The reason is not a lack of concern or commitment; rather, it is because as a mandatory (unified) bar, we are legally constrained in how we engage in advocacy. Understanding these limitations is important for all members, so that we can remain focused on our core mission and continue to serve you effectively.
State bar associations, particularly those bar associations in the thirty-three (33) states where attorneys licensed to practice law are required to be a member and pay dues to the State Bar, are subject to a variety of limitations on its advocacy activities. Those bar associations are known as “mandatory” or “unified” bar associations.
The landmark decision of Keller v. State Bar of California,[fn 1] established the standard, still observed as controlling law today, for what advocacy activities are permissible for a mandatory bar association. In a unanimous decision rendered by Chief Justice William Rehnquist, the United States Supreme Court held that attorneys who are required to be members of and pay dues to a state bar association have a right under the First Amendment of the United States Constitution to refrain from subsidizing the organization’s political and/or ideological activities. While it remains lawful for a state bar association to require attorneys practicing law in the state to be members of the state bar association, compulsory membership dues collected by the association may be used only to regulate the legal profession or improve the quality of legal services delivered in the state. Activities relating to such regulation of the legal profession or the improvement of the quality of legal services rendered in the State are deemed to be “germane” activities and thereby permissible without violating the rule of Keller. Any other activities which do not fall within the safe harbor of being germane are deemed non-germane and violative of the Keller limitations.
In a follow-up, the 1991 California case brought by the second-named plaintiff in Keller, Raymond L. Brosterhous, and several other California attorneys, objected to the California Bar Association’s continuing use of their dues for political and ideological activities. A court order rendered in this second case directed the California Bar Association and its Conference of Delegates to refrain from lobbying and/or engaging in special activities designed to promote the careers of women and minorities and other social and political programs, and that other social and political programs could not constitutionally be funded by compulsory bar dues. The direction of the Brosterhous court order has over the years been tempered through the holdings of other federal court decisions. In California and other mandatory bar states, a voluntary arm was established to engage in public non-germane advocacy.
Since Keller, several other cases in which the plaintiffs asserted unconstitutional advocacy, lobbying and other activities by mandatory bar associations have fundamentally adhered to the principles of Keller.[fn 2] Advocacy supporting or opposing programs or legislation unrelated to the regulation of the legal profession or improving the quality of legal services remain prohibited. Among the more recent cases deserving of attention are McDonald et al. v. Longley,[fn3] and Boudreaux v. Louisiana State Bar Association.[fn 4] These post-Keller cases identified several bar association activities that are non-germane, particularly those relating to political or ideological issues, but Boudreaux also set a standard for what is germane. To be permissible, activities must be “inherently about the practice of law or the legal profession more generally,” rather than having a “mere connection to a personal matter that might impact a person who is practicing law.” So, while publicizing or supporting legal pro bono activities is permissible, publicizing or supporting generic charitable activities is not.
Further, Boudreaux declared that programs seeking to “diversify the legal profession for minorities, women, and LGBT attorneys” are germane notwithstanding “the controversial and ideological nature of those diversity initiatives” because those programs are “tied to the diversity of lawyers” and thereby “tied to the quality of legal services.” The Boudreaux court went on to explain why state bar activities supporting the rule of law, the Constitution and democracy may be germane.
For those approximately two-thirds of the States that are mandatory bar states, constant diligence must be observed in promoting bar association programs and initiatives. For example, the RIBA supported what proved to be the successful enactment in our last Rhode Island legislative session of a bill establishing the rights of lawyers representing trustees and other fiduciaries to maintain the confidentiality of client communications with their trustee clients.[fn 5] This effort was notable because the RIBA can only take action on legislation determined to be germane, and in this case the Executive Committee agreed it was. Limitations imposed on mandatory bar associations do not in any way inhibit the rights of our individual members and affinity groups to advocate or lobby for or against any issues, programs and initiatives. In fact, we encourage all of our members to responsibly engage in public advocacy of issues, irrespective of germaneness.
When the Executive Committee is unable to reach a unanimous and clear consensus on germaneness, or when it seeks additional support in making that determination, it turns to our Task Force on RIBA Governance and Structure, chaired by Armando E. Batastini. The Task Force has devoted tremendous effort to researching and guiding the Executive Committee on the boundaries of what is and is not germane. For example, in preparation for the Annual American Bar Association House of Delegates meeting in August of this year, the Task Force assisted in identifying those ABA Resolutions (among the more than fifty presented) that could be deemed germane and therefore eligible for our Rhode Island delegates to vote on.
The RIBA Executive Committee considers it to be our fiduciary duty to protect the Bar’s structure, resources, and capacity to serve its members and the public. Our focus remains on ensuring that we continue to respond appropriately with integrity and sustainability.
A mandatory bar provides the structure and resources needed to deliver meaningful programs and services, benefiting both our members and the public. Among the reasons the Rhode Island Supreme Court unified the Bar was to make it possible for the Association to provide robust programming and member services, including placing pro bono matters with volunteer attorneys and sponsoring continuing legal education. One of our core responsibilities is to work with our members to uphold the honor of the legal profession, and we believe the most meaningful way we do this is by increasing access to justice. Thanks to member dues, we are able to staff and administer programs that serve thousands of Rhode Islanders each year. These include the Lawyer Referral Service, Volunteer Lawyer Program (which places roughly 800 pro bono cases annually), Reduced Fee Referral Program, Pro Bono and Reduced Fee Referral Program for Senior Citizens, Armed Forces Legal Services Project, and Lawyers for the Arts Program. While some initiatives receive limited grant support, the majority of funding for these programs comes from the support of member dues. Together, we ensure that the legal profession remains a powerful force for good in our community, expanding access to justice and strengthening public trust in the rule of law.
Quotes
1 Keller v. State Bar of California, 496 U.S. 1 (1990).
2 Petition to Amend Rules 32(c) & (d) (Ariz.); Boudreaux v. La. State Bar Ass’n, 3 F.4th 748 (5th Cir. 2021); Taylor v. State Bar of Mich. & Bd., 4 F.4th
406 (6th Cir. 2021); Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019); Schell v. Gurich, 210 F. Supp. 3d 1221 (W.D. Okla. 2016); Crowe v. Or. State Bar, 989 F.3d 714 (9th Cir. 2021); Gruber v. Or. State Bar, 32 F.4th 1184 (9th Cir. 2022); McDonald v. Longley, 4 F.4th 229 (5th Cir. 2021); Pomeroy v. Utah State Bar, No. 2:20-cv-00762 (D. Utah 2020); Scannell v. Wash. State Bar, 34 F.4th 657 (9th Cir. 2022); Eugster v. Littlewood, 34 F.4th 701 (9th Cir. 2022); Jarchow v. State Bar of Wis., 140 S. Ct. 1720 (2020) (mem.); File v. Kastner, 32 F.4th 1014 (7th Cir. 2022); Levine, Petition to Amend Rules (Wis.); Suhr/WILL v. State Bar (Wis.).
3 McDonald et al. v. Longley, et al., 5th Cir., 4 F. 4th 229 (5th Cir. 2021) and 142 S. Ct. 1442 (2022).
4 Boudreaux v. Louisiana State Bar Association, No. 22-30564 (5th Cir. 2023).
5 See Rhode Island Chapter 038, 2025 H 5365, § 18‑1‑5 (enacted June 13, 2025).
