After posting about occupational licensing and the first amendment, and the Texas court decision regarding the dispensing of veterinary advice online, I’ve distilled a few thoughts on where I see the (uneasy) line between lawyer licensing and free speech rights:
- Providing advice is a form of expression, protected by the First Amendment. The fact that someone charges to provide it does not change the analysis, or the government’s heavy burden to show that its attempts to regulate such expression can survive strict scrutiny.
- The legal industry has drawn a very wide circle in defining “the practice of law.” It typically includes services, provided by non-lawyers, that offer advice to low-income consumers on how to fill out forms or otherwise engage with bureaucracy or the legal system.
- Prohibitions on paid advice are typically rationalized as being necessary for consumer protection. While this sounds good, it’s hard to see how such arguments could survive strict scrutiny. Besides the fact that the advice given in such situations is typically very straightforward, there are plenty of narrower means of regulating available, from disclosure to bonding to malpractice insurance requirements. And let’s be frank – there is at best no more than a tenuous of connection between the requirements of legal licensing and the ability to, say, advise a consumer about how to file for a name change.
- The state can prohibit people or businesses from holding themselves out as lawyers to consumers. Any such holding out would be both deceptive and commercial, and thus easily barred under traditional commercial speech analysis.
- The state can regulate non-expressive conduct. For example, regulations limiting to attorneys the signing of various documents would not offend the first amendment. However, given the uniquely speech-centered nature of legal practice, there is less non-expressive conduct to play with than is present with other licensed occupations such as doctors or dentists.
- The state can regulate who is allowed to engage in traditional courtroom representation and advocacy. There are two grounds for this: the fact that courtrooms are considered non-public fora, and the fact that courtroom advocacy of the interests of others is the core function of being a lawyer, and has a long history of occupational regulation.
I suspect that a first amendment challenge to the occupational licensing of attorneys – if reviewed by a court objective enough to set aside their own lawyerly biases – would result in a sharp drawing-in of what we think of as “the practice of law” reserved for those with professional licenses. We could well end up with a system such as that which prevails in the United Kingdom, where “the practice of law” is limited to six “reserved” areas of legal work that only lawyers can perform. You’ll notice that “legal advice” is not one of the six:
- Rights of Audience (appearing as an advocate in court)
- Conduct of Litigation (managing a case through court processes)
- Reserved Instrument Activities (specific types of real estate and property transfers)
- Probate Activities (handling probate matters)
- Notarial Activities (acting as a Notary 1)
- Administration of Oaths (taking oaths, swearing affidavits, etc.)
My belief is that this would be an unequivocally good thing for both consumers and free speech. But would it necessarily be bad for lawyers? Outside of those areas where lawyers currently use their monopoly status to overcharge consumers for work that doesn’t require a lawyer, I don’t think so.
Much of traditional legal work would still require a lawyer. And even beyond that, clients would still want to use lawyers for a lot of work even if non-lawyer alternatives were available. That seems to be how things are working out in the UK, where plenty of London solicitors continue to make a fine living providing legal counseling and advice.
- Notaries in the UK must be lawyers. ↩