Is Mental Wellness Part of Practicing Law?
The Fifth Circuit doesn’t think so, although we disagree. We are talking about Boudreaux v. Louisiana State Bar Association (86 F.4th 620 (5th Cir. 2023)). In Boudreaux, the court found that the state bar association violated an attorney's First Amendment rights by, among other things, making social media posts about wellness.
As an initial matter, I don’t want to downplay the power state bar associations have and the implications for individual attorneys and their First Amendment Right to associate (or not associate). This isn’t the first time the issue has come up though. The Supreme Court established in 1990 in Keller v. State Bar of Calif. (496 U.S. 1, 13-14, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990)) that bar association speech had to be “germane to regulating lawyers or improving the quality of legal services in the state” (emphasis added).
There are countless examples of how taking care of one’s mental health improves their well-being, the quality of their work, and the well-being of the profession. Yet the Fifth Circuit said,
“If a bar association may tout the health benefits of broccoli, may it also advise attorneys to practice Vinyasa yoga, adhere to a particular workout regimen, or get married and have children, if it believes that those activities improved attorney wellness and therefore the quality of legal services in the state? How remote or indirect can the purported benefit to legal services be? The LSBA offers no clear answer, nor can we discern any principled line once we allow advice that is not inherently tied to the practice of law or the legal profession.”
First, touting the benefits of broccoli does not require those who see the social media posts to eat broccoli, any more than touting the benefits of a certain continuing education course requires attorneys to take that specific course. The bar association was using its social media platform to inform and educate members about possible healthy choices they could make that would improve their health and potentially their professional performance.
The court in Boudreaux goes on to say, “The germaneness standard therefore requires inherent connection to the practice of law and not mere connection to a personal matter that might impact a person who is practicing law.” Yet it seems to us a hypocritical double whammy to ask incoming lawyers about their mental health on bar applications, only to reprimand the bar association for trying to help attorneys with their wellness.
And the chilling effect this potentially has had, at least within jurisdictions within the Fifth Circuit, is even more troubling. We’ve heard about bar associations understandably pulling back on wellness programming for fear of running afoul of Boudreaux, even as the ABA and other legal bodies are starting to discuss the importance of mental well-being in the legal profession even more.
Hopefully, a solution will be reached that can allow bar associations in those states to resume wellness practices. In the meantime, The LegalMind Society is ready to support legal professionals who might be looking for alternatives to bar association support in the wake of Boudreaux.