Problems With The “Ethics Opinion” Approach

Another critical problem is that attorneys in many states can’t depend on the bars to give appropriate guidance on compliance with the Rules of Professional Conduct.  Ask for an ethics opinion with respect to a new form of communication and you’re likely to get the most conservative viewpoint possible.  In most cases, ethics counsel for the Bar will broadly apply the rules, with no regard whatsoever for the first amendment implications. Indeed, in some cases the regulators explicitly state that their opinion does not take into account any first amendment factors. 1

The Supreme Court addressed a very similar system – that used by the Federal Election Commission – in the landmark 2010 Citizens United case. 2  Remarkably, the words chosen by the Court in Citizens United to describe the FEC’s advisory opinion process could just as easily apply to the process used by many state attorney regulators:

“Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” [citations omitted]. Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 5885 S.Ct. 734.

Despite the approach of some Bars, there’s simply no way to interpret the rules regarding attorney speech without considering the first amendment.  Those bars that explicitly fail to do so are exacerbating the censor’s veto, hurting consumers, lawyers and the interests of free expression.  

However, by understanding how the the commercial speech doctrine works, attorneys should be able to confidently determine for themselves,independent of Bar input, where the rules apply and where they don’t.

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Notes:

  1. See, e.g., the last line of South Carolina Ethics Opinion 09-10.
  2. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

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