Category Archives: Regulation

High Past Time to Amend the Attorney Ad Rules

Faithful readers of this blog will know that I have long lamented the scabrous attorney advertising rules. Larded down with a centuries-old accretion of quaint prohibitions, the rules are doing nobody any favors.

However, there may be some light at the end of the tunnel. The ABA is actively considering a proposal to streamline its Model Rules relating to attorney advertising. This process gathered momentum on the back of some very fine work by the Association of Professional Responsibility Lawyers, and is happening in an environment that seems ripe for change: states from Oregon to Virginia are actively considering changes – good changes – to improve their ad rules.

Avvo has filed comments in support of the ABA’s initiative; you can read them here. Some other folks also filed comments; almost all of them are also supportive.

Here’s the tl;dr version of Avvo’s comments:

The current rules are both unnecessary and actively harmful. Unnecessary, in that the detailed regulations don’t offer consumers any meaningful protections beyond what a general prohibition on false and misleading advertising would provide. And actively harmful, as they cost the public legal information and innovation through the chilling of lawyer speech.

Here’s hoping the ABA sees this one through, and makes this necessary and long-overdue change.

Good Reversal in “Docs v. Glocks” Case

The 11th Circuit in Florida has just issued its en banc ruling in the infamous “Docs v. Glocks” case. This is something like the third or fourth decision in this case, which addresses the question of whether and to what extent doctors can ask their patients about firearms in the home.

As I’ve written about before, my interest in the case is what it tells us about state regulation of professional speech. Such regulation is an open area, and obviously important to lawyers and the legal profession. After all, most of what we do professionally consists of “speech.”

Today’s decision – which reverses the prior panel, thus striking down the speech-offending portions of the law – spends a fair bit of time parsing the meager state of occupational speech regulation law (much of which consists of Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.). In so doing, it affirmatively rejects the appropriateness of “rational basis” review of occupational speech-limiting regulation, while leaving the ultimate question (which is it, intermediate or strict scrutiny?) hanging:

Because these provisions fail to satisfy heightened scrutiny under Sorrell, they obviously would not withstand strict scrutiny. We therefore need not decide whether strict scrutiny should apply.

Darn it. Still, it’s good to see a decision solidly finding that professional speech is entitled to First Amendment protection – even if it can’t quite tell us how limited the state’s power to regulate might be.

Fake News, Hate Speech, and the First Amendment

I launched this blog as a place to keep all of my notes and thoughts on the professional regulation of attorney speech, a topic largely (but not entirely) informed by the commercial speech doctrine. The doctrine – which permits the government to limit or compel speech under a laxer set of standards than would apply to “core” expression – labors under an unfortunate name. Too many people, including far too many lawyers, think that the doctrine applies to ALL speech by businesses.

This is, of course, demonstrably wrong. The vast majority of media outlets in the U.S. are “commercial,” insofar as they are owned by for-profit entities. In fact, many of these entities are the corporations that people (many of whom surely know better) inveigh against when gnashing their teeth over the Supreme Court’s Citizens United decision. As the Supreme Court has held, time and again, the fact that something is published for commercial reasons (i.e., to make money) does not make it commercial speech. Because if it did, we couldn’t have an independent media. 1

And it seems to me that right about now is when we really, really should see the benefits of an independent media. We’ve got a new administration that has explicitly called out the media as the “opposition party,” that traffics in falsehoods, lies, and gaslighting, and which seeks to punish those outlets that aren’t deemed sufficiently obsequious to its agenda.

This is why it’s particularly galling that people on the left continue to be some of the loudest voices for chipping away at media independence – or free expression rights in general. We’ve seen in recent days an MSNBC journalist suggesting that the federal government should regulate to prevent “fake news,” and even my neighborhood college campus is now up in arms over “hate speech.”

While I could fall back on my lofty exhortations about the value of a robust First Amendment, I would ask all of these would-be censors a simpler and more pragmatic question:

Is this the government you want to let decide what you can and cannot say?

 

 

Notes:

  1. For additional context and background on this, check out Avvo’s 2016 federal court win, which turned on this very question.

The McDonalds of Law?

Late last year, I offered to a room full of attorneys that they should consider emulating McDonalds when it comes to delivering consumer legal services.

Yes, the response was underwhelming. But hear me out:

Think of restaurant dining and legal services as solutions to problems. Dining solves the problem of hunger and nutrition; legal services whatever our legal problem (or, perhaps, opportunity) might be.

When it comes to dining out, one option is McDonalds. It’s quick, predictable, calorie-dense, and cheap. And while the “quality” of the McDonalds dining experience from the subjective perspective of taste might be low, the “quality” from the objective perspective of food safety is on par with other restaurants (and probably higher than average).

Now, if you want a dining experience that is higher in a subjective quality like taste, novelty, or ambiance, you will choose something other than McDonalds. That experience will almost certainly cost more – perhaps orders of magnitude more – but you will make that choice knowingly and openly. And, critically, the restaurant you choose won’t be any different from McDonalds on the objective quality measure of food safety.

Now, on to legal services.

If you’re a consumer in need of legal services, you face a legal marketplace where 95+% of the providers are offering only Chez Panisse-levels of services. Fancy, full-scope, custom services. And let’s put aside for a moment how well they are delivering on that quality promise [too often, not well], and ask the harder question: do consumers of legal services really WANT only the option of dining at Chez Panisse? Or would many of them just rather have some of that fast-predictable-cheap McDonalds action?

We know the answer to this question already. In every other category of goods and services, consumers are used to trading off price for quality. And, predictably, most of them will choose the lower-cost / lower-quality option.

It’s not just McDonalds vs. Chez Panisse. Think staying at the Motel 6 vs. The Ritz. Flying Frontier vs. any other airline. Buying clothes at Old Navy vs. Nordstrom. The subjective quality differences scale all over the place.

And here’s the thing: it’s completely rational for consumers to make these choices based on their own needs and economic condition, as long as the most important measures of objective quality are reasonably similar. Which they are; a mix of marketplace dynamics and consumer protection regulations ensure that minimum levels of objective quality are met.

So knowing that consumers in every other category want the option of a quick, predictable, affordable experience, why don’t more lawyers offer it? One common reason I hear repeatedly is that every legal problem is different, and that lawyers need to provide a sterling level of diligence in order to meet their ethical obligations and avoid malpractice.

This is a bogus objection. McDonalds doesn’t offer a high degree of food safety because they custom-make and inspect every burger and order of fries; they do it because they’ve consciously built up the processes necessary to provide this quality at scale. And lawyers could also offer cheap-and-predictable legal services, at high objective quality, but in order to do so they would need to re-tool their processes to support it. But rather than so doing, too many lawyers continue to rely on handwork, hoping to entice the small “fine dining” segment of the legal market.

So a lot of what’s blocking the opening up of a much bigger segment of the legal services market is mix of inertia, aversion to change, and a lack of facility in business process design. I am far from having all of the answers to this, but if you’re planning on attending Lawyernomics 2017 this April in Las Vegas, my talk will be focused on exploring this opportunity in more detail. I hope to see you there.

This is Why We Can’t Have Nice Things

If you want to see a particularly bleak example of what’s wrong with the legal profession’s over-regulation, check out Massachusetts Bar Ethics Opinion 98-1. This opinion finds that attorneys can’t offer limited scope legal services to clients if those services consist of “ghost-writing” litigation documents.

While this opinion is something of an outlier (and, it should be noted, was issued by a voluntary bar), many states have specific regulatory limitations on the ability of consumers to buy limited scope legal services in the form of help with drafting pleadings. 1

These rules usually take the form of some requirement that attorneys sign off on or otherwise notify the court that they – and not the pro se litigant – have written the document, and are justified on the theory that to not do so would be to somehow deceive the court.

This seems to take a particularly dim view of the capabilities of judges, while simultaneously playing up the supposed uniqueness of lawyers (as anyone who reads a lot of pleadings can tell you, there is vast range of quality across pleadings drafted by lawyers).

And more importantly, it acts as (yet another) regulatory barrier to access to justice. Lawyers who must sign off on pleadings they help draft are going to be far more reluctant to offer limited scope services, or will only do so at a cost level approaching full-scope representation.

Look, attorneys have since time immemorial relied on other attorneys – often not listed in the caption – to help them craft their pleadings. Pro se litigants regularly rely on family members and friends to pitch in.

So why are we so worried about disclosure when a lawyer helps a pro se litigant? Yes, maybe in some edge cases these litigants will gain an edge due to judges giving them some pro se deference despite the professional nature of their briefs. But see what I wrote above about judges – and keep in mind that the deference given to parties who represent themselves is almost never substantive; it’s more about getting more leeway on the process side.

When it comes to the arcana of courtrooms and litigation procedure, unrepresented parties could use all of the help they can get. And I’m sure judges would agree that the whole process would run a lot more smoothly if pro se litigants had regular access to SOME sort of limited scope advice.

At the end of the day, we are fighting the imagined demon of judicial deception at the expense of providing greater access to legal support for pro se litigants.

Maybe that tradeoff was intentional, but I doubt it. Rather, I bet these rules were adopted under roughly this algorithm:

  1. Hey, here’s a theoretical problem!
  2. OK, here’s a potential solution to your theoretical problem!
  3. Great, let’s draft a rule!

If we ever want to get serious about improving consumer access to legal services, we’re going to need to rein in our lawyerly fondness for regulatory solutions, and start fully considering the potential consequences of each rule.

Notes:

  1. Lawyerist recently published a comprehensive list of each state’s rules.

Worrying vs. Looking to Opportunity

The Georgetown Law Journal just published an article by Alberto Bernabe, a professor at John Marshall Law School in Chicago. Titled “Avvo Joins the Legal Market; Should Attorneys Be Concerned?,” the article goes through twenty-some pages to arrive at the answer that yes, attorneys should be concerned.

While I’m happy with Professor Bernabe’s choice of topic (and hey, he even cited to this blog), I don’t see this work adding much to the discussion.

Why? Because it’s easy to argue why attorneys could be concerned about any application of facts to the law. Hell, “being concerned” might as well be the job description of most attorneys; it’s what we’re built for.

The harder – but increasingly necessary – thing for attorneys to do is to try to think about how they can get past their concerns and look toward the opportunity to better serve the public. Bernabe closes his piece by arguing that “the rules must have meaning; their text must be observed.” I’m not sure what this means; outside of those black-and-white cases where something is clearly covered by the rules, we are always engaging in an effort to interpret the rules. And when it comes to the Rules of Professional Conduct, that interpretation must be guided by two related principles:

1) that the purpose of the RPCs is protecting clients, consumers, and the integrity of the judicial system; and

2) that Rules impacting the rights of consumers and attorneys to exchange information are constrained by the First Amendment.

From where I sit, this means that any “concern” we attorneys feel should be focused primarily on whether a practice helps or hurts consumers – not whether it might run afoul of some bloodless, mechanical interpretation of the law.

Oh, and I have some specific quibbles:

Fee-sharing: Bernabe underplays the fact that the fee-sharing prohibition in Rule 5.4 has been routinely interpreted to permit fee-sharing in situations where an attorney’s independent professional judgment is not at risk. In addition to not mentioning that this outcome is found in a majority of “deal of the day” ethics opinions, there is no recognition of the fact that regulators have no concern with the fee-sharing that happens when credit cards are used to pay for legal fees. This classic example of the Rules being interpreted to their purpose (an example very analogous to Avvo’s services) goes completely unmentioned by Bernabe – probably because it rather flies in the face of his “only the text matters” argument.

And let’s go a little further: anyone who argues that Avvo’s Services violate Rule 5.4 is trying to have it both ways – as a rule that prohibits both obvious fee-sharing AND anything else that feels like it is related to the fee a lawyer earns.

But all of a lawyer’s expenses are related to the fees he or she earns. Attorneys are business owners. They have to pay for things. Things like rent, and staff salaries, and advertising. And they are “sharing” the fees they earn whenever they pay for this stuff.

We could be concerned that Rule 5.4 creates problems when it comes to “sharing” our fees with City Light by paying our utility bill, but even lawyers have their limits. Rather, the rule can only be coherently read in one of two ways. It is either:

  • A rigid rule that prohibits the literal sharing of a client fee (this would be the “textualist” approach); or
  • A flexible rule that prohibits a wider range of fee-sharing, but only in circumstances where the arrangement risks compromising the lawyer’s independent professional judgment.

Bernabe thinks it can work both ways – applying technically (and without regard to the purpose of the rule) to anything that seems like it might have a linkage to the legal fee. Such a result finds support neither in the text nor the purpose of Rule 5.4.

Pay-Per-Action: Related to the above is Bernabe’s objection that the fact that Avvo’s marketing fee is predicated on a Service being actually delivered renders it an impermissible fee-share. At the risk of belaboring the point, this analysis can’t be done without looking at whether the arrangement threatens the lawyer’s professional independence. Which Avvo’s Services do not do.  For more, read my earlier post, “Pay-Per-Action, Legal Edition.”

Handling Client Money: It’s strange how persistent this issue is, unmoored as it is from any plausible consumer protection interest. These are people who are paying for legal services with credit cards. If they have any concerns about their money, they have protections via the card issuers that are far stronger than anything the bar regulators can impose.

What’s more, Bernabe significantly munges up how Avvo’s Legal Services work. In the vast majority of cases, Avvo is not charging a client’s credit card until after the legal fee has already been earned (most services are primarily in the form of brief paid consultations, and the client’s card is not charged until after a consultation occurs). And in cases where the fee may be earned over a longer period of time, attorneys can have the fees deposited directly into their trust accounts. 1

Bernabe also raises the question of how attorneys can meet their trust account obligations if Avvo holds the fees for some period of time before they are earned or deposited into the lawyer’s trust account. But this question is a red herring.

Yes, Avvo may hold unearned fees for a short period of time before they are earned. But so does any financial intermediary – a bank, a credit card processor, etc. The reason no one worries about the financial world’s “hold or transfer” periods – which may extend from several days to several weeks – is because these holds don’t put the client at risk of loss. Thus, it’s nothing more than a metaphysical exercise to worry about where the money resides during this interregnum.

The Commercial Speech Doctrine: 2 Bernebe takes me to task here:

Thus, Avvo is wrong about the types of speech to which the constitutional protection applies, as well as to which constitutional standard applies, and confuses the elements of the intermediate scrutiny standard with those of the strict scrutiny standard, which is one that clearly does not apply.

Dang! I’d say in my defense that I wasn’t writing a freaking law review article, and Bernabe has the advantage of much more ink (and time, and law clerks) with which to hone his argument.

Except I’m not the one who is wrong.

While I don’t really care that he creates a strawman about the types of speech protected by the commercial speech doctrine (I’ve never argued that false and misleading advertising is protected by the First Amendment), it’s a bit baffling that Bernabe so badly bungles the intermediate scrutiny standard. He smacks me for conflating the “intermediate” and “strict” scrutiny standards, arguing that “narrow tailoring” of regulation is not an element of the commercial speech doctrine.

Except that it is. Had he looked beyond the Zauderer case (a curious choice to cite to, given that it’s a relatively forgettable, middle-of-road case in the Supreme Court’s voluminous commercial speech jurisprudence) he might have found:

Central Hudson (only the seminal case establishing the commercial speech doctrine):

“For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

or SUNY v. Fox:

“What our decisions require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective.” [citations removed]

Oh, or even Zauderer, several pages later:

“the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means.”

This may seem a technical point, but if you’re going to argue for 20+ pages that attorneys should be concerned about Rules that must be interpreted via a constitutional doctrine, you ought to get that doctrine right.

And it’s actually more than technical. The “narrow tailoring” requirement is a key element of my view that attorneys don’t need to worry about these rules as applied to Avvo’s Services, as any interpretation that would find that our Services violate the RPCs would neither advance an important government interest nor be narrowly tailored to that end.

Summing Up . . .

Yes, we can worry about anything. Lawyers are very, very good at worrying about things. But if we are going to expand access to legal services, if we’re going to grow the market of people willing to hire lawyers, we’re going to need to adopt some more innovative ways of thinking. Instead of looking under the rugs for things to worry about, how about thinking creatively about how we can avoid worry? The public needs us to find better, more flexible ways to help them address their legal needs. Let’s not let our inherent reservoirs of worry keep us from delivering on that.

Notes:

  1. And in fact, Avvo encourages attorneys to set their accounts up so that ALL fees earned from Avvo Services are deposited into their trust accounts. Avoiding co-mingling requires both that the attorney not mix client funds with the attorney’s operating funds, but also that the attorney not mix earned fees with unearned client funds. We believe that the best practice is to deposit all fees into the trust account, and regularly review and sweep to the operating account those fees that have been earned.
  2. Trigger warning: this section is long on law-geekery.

Ethics Opinions: A Modest Proposal

A few months back, I ranted about the inanity of Bar ethics opinions – those things that purport to help conscientious attorneys ensure they are fully in compliance with the Rules of Professional Conduct. I’d like to add some nuance to that, and also propose a new approach for bars when it comes to ethics opinions.

Here’s the thing: the extra-careful, bend-over-backward approach of ethics opinions is actually a good thing when it comes to a lot of the ethics rules. As I tell attorneys, if you feel like you’re splitting hairs or facing a close call when it comes to client confidences or protecting your client’s assets, you’re already lost. You should ALWAYS err on the side of caution in those matters. And ethics opinions do a great job of helping attorneys err on the side of caution.

The problem comes when ethics opinions apply this same belt-and-suspenders approach to attorney marketing.

Here’s why: the rules dealing with attorney-as-fiduciary (whether money or confidences) only ratchet one way. There’s no detriment to clients if attorneys are overly-protective; what client WOULDN’T want their attorney to be super-cautious when it came to their money or secrets?  But that’s not the case for attorney marketing. Applying the same level of caution to marketing is actually BAD for consumers, as it deprives them of important information about legal services.

How’s that? Because a major way consumers find information about legal services is via communications from lawyers. And a lot of those are marketing communications. If the conscientious lawyers – the kind who ask for, read, and pay attention to ethics opinions – are pulling back their communications because a Bar ethics opinion took an uber-conservative interpretation of the attorney advertising rules, then consumers have access to less information and fewer innovative service offerings. That’s a bad thing for consumers and lawyers alike.

And it’s not just good policy that a fundamentally different level of caution should pertain to interpreting the RPCs as applied to marketing rules than to the other professional obligations of attorneys. You see, the First Amendment dictates that a wholly separate level of scrutiny apply to regulation in this area. While the state has wide latitude to regulate most matters related to attorney regulation, it has a much higher burden to meet when it comes to interpreting  rules that impact legal marketing (for more on this, see my in-depth discussion of the commercial speech doctrine).

Yet Bar ethics opinions almost never acknowledge this, and persist in taking the same cautious approach regardless of the rule in question. This is no good: it shows a lack of respect for important First Amendment principles, and it is actively harmful to both the profession and the public it serves.

So here’s my modest proposal: Bars should simply stop issuing ethics opinions on questions impacting legal marketing.  To preempt such requests, they could feature a statement like this on their “ethics opinions” pages:

The First Amendment protects the commercial speech of attorneys.  This is not just for the benefit of attorneys. As the US Supreme Court noted in Bates v. Arizona:

“[T}he consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day.  And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.  In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.” 433 U.S. 350, 364 (1977) (internal citations removed.)

There is an inevitable tension between the cautionary approach of ethics opinions and the public interest in access to a robust amount of information about legal services. Accordingly, the Bar does not offer advisory ethics opinions on the Rules of Professional Conduct relating to attorney advertising.

This should not be interpreted as a lack of concern for compliance with the Rules in this area. The Bar actively pursues disciplinary action against those attorneys who engage in false, misleading, or otherwise deceptive marketing practices.

October 2016 Notes: Is There a Ray of Light in the Attorney Regulation Darkness?

Florida Institutionalizes “Access to Justice” Efforts.  In recent years, many states have implemented commissions to try and find solutions to the “access to justice” crisis. In Florida, after several years of work, the state Supreme Court has decided to make that state’s Commission permanent. That’s a good thing; the growth in pro se representation makes it incumbent upon courts to find ways to make it easier for people to grapple with the wheels of justice. This is not a problem so easily solved in a handful of years. But let’s also hope that the Commission – with the guidance of the Florida Supreme Court – will turn its attention to the archaic regulations that make it difficult for attorneys to offer innovative services to a public desperate for legal information and guidance. Because the Florida Bar seems to be trying to make things even worse.

Virginia Looks to Streamline Attorney Advertising Rules. On a more encouraging note, Virginia is leading the charge to update the attorney advertising rules. This effort stems from the Association of Professional Responsibility Lawyers, which analyzed the rules and concluded that many of them are unnecessary, unconstitutional, and unduly burdensome. The issues with the existing rules go beyond the mere pedantic. The rules keep good attorneys from speaking out about the legal services they provide, while distracting enforcement authorities with banalities like lawyer referral service regulation or determining the “reasonable cost of advertising.” APRL’s proposal – which Virginia is looking to adopt – would eliminate much of this “cruft” within the rules, while retaining and sharpening the focus on preventing false and misleading advertising. This would be a great outcome for consumers and attorneys alike, and the Virginia State Bar deserves a lot of credit for pushing forward with such meaningful change.

Court Finds Review Sites Immune From Suit. 47 USC § 230(c)(1) is a curious law. Only 26 words long, “CDA 230” stands for a counter-intuitive (to lawyers, at least) principle: that responsibility for online content rests only with its creator. It doesn’t matter whether someone else has provided a forum for the content, promoted it, or disseminated it. Only the “content creator” can be liable. I call CDA 230 “the law that makes the internet go,” because it allows sites like Facebook, Twitter, and YouTube (and Avvo!) to create robust online communities without being liable for all of the stuff that gets published within those communities. There are exceptions to this rule – think IP and federal crimes – but for the most part CDA 230 is a powerful factor in the growth of the web. All this background to get here: the 9th Circuit just found that CDA 230 immunizes Yelp from defamation liability for user reviews. While the outcome was abjectly unsurprising, it’s nice to see the rule applied directly to online reviews.

Social Media News and Notes:

RT ≠ endorsement: court authorizes service of process via twitter.

Amazon bans incentivized user reviews.

More evidence that “reputation management” companies may be defrauding courts.

 

Intermediate Scrutiny for Professional Speech Regulation?

To what extent should the government be able to regulate what doctors and lawyers say? Sure, the focus of this blog is commercial speech, and that question is relatively settled (at least as far as the speech in question is straightforward advertising). But what about other forms of expression? How far can the state go in controlling what professionals say in that capacity, or when they are working with clients or patients?

It’s a messy issue, and one that is surprisingly bereft of easy answers or judicial guidance.

How messy? Well, Florida thinks it needs to protect the second amendment rights of its citizens by restricting how doctors can talk to patients about guns.  And California thinks it needs to use pregnancy-related clinics (including religious ones) to help advance the marketing of its state-funded family planning and pregnancy services, including abortion.

Where does the line get drawn? As I’ve argued before, I believe there are significant First Amendment problems with including “legal advice” within the legal monopoly. I also believe that getting a license to practice law should not deprive an attorney of full free speech rights – at least when those rights are exercised outside of a client’s matter.

But what about speech that’s engaged in within the attorney-client or doctor-patient relationship? While it seems clear that the government shouldn’t have free rein over what is clearly expressive activity, it also seems that the state’s interest in licensing – which is, broadly speaking, to protect the public – would dictate that it gets some leeway here.

But what should the standard be? It’s surprising that this issue hasn’t been more fully-fleshed out by the courts. Outside of speech at the core of professional licensure, 1 it’s a marshy swampland.

While we’re probably not going to get any answers until the Supreme Court directly addresses professional speech regulation, the Ninth Circuit did helpfully wade into the swamp in ruling on the California “abortion marketing” law described above. In its October 14, 2016 decision in NIFLA v. Harris, the Ninth Circuit found that regulation of “middle ground” professional speech – that is, speech that is less than a “public dialogue” yet more than the speech-as-conduct at the core of a professional’s practice – is subject to intermediate scrutiny review (the same as commercial speech).

That sounds right to me, 2 and it provides a good way of thinking about the extent of acceptable lawyer speech regulation in areas that don’t involve advertising or advocacy.

But again, this is an area that could really use an assist from the Supreme Court.

 

Notes:

  1. For example, psychological counseling or advocating for a client before a court, either of which would likely be considered by a court to be conduct rather than speech for the purposes of regulation. See, e.g., Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013).
  2. Although the Ninth Circuit really rushed through – in an unconvincing way – the intermediate scrutiny analysis to find that California could compel pregnancy clinics to market the state’s services.

The First Amendment in the Courtroom

In there a tension between the First Amendment and a judge’s right to control the courtroom? Nah. The right of a judge to control the courtroom pretty much slices through any such tension. Courtrooms – despite being government spaces – are the quintessential non-public fora. It’s not without reason that it’s been said that first amendment rights are “at their nadir” in the courtroom.

And control they do. Judges can be notoriously tetchy about stuff.  In just this last week, I’ve seen stories about judges getting butthurt over derogatory references to AOL email addresses, a big law firm sending a first-year associate to a hearing on an important case, and a lawyer refusing to remove a “Black Lives Matter” pin.

Of course these positions are stupid: taking offense over a perhaps-derogatory reference to an email address is mind-numbingly petty; many junior lawyers are better prepared than their senior partners for questions from the bench; and getting bent out of shape over a pin says more about a judge’s political beliefs than anything else.

But there’s a reason everyone laughs at a judge’s jokes. As an advocate, you’re in court represent a client. And as Megan Zavieh notes, your sole job in the courtroom is to advance the interests of your client. So laugh you do, and be sure to be prepared for a hearing, and don’t make jokes at the tech-enfeebled judge’s expense.

And you sure as hell don’t argue with the judge when he orders you to remove your politically-sloganeering button.  It beggars belief that a lawyer wouldn’t understand this; that she would let herself be shackled and taken from the courtroom – leaving her client unrepresented – in service of “standing up for her beliefs.”

While there are arguments about whether this judge’s order was appropriate, that’s beside the point when it comes to the attorney’s decision. Her beliefs? They could live to be vindicated another day. If she thinks the judge is a retrograde dinosaur, should could have fully exercised her First Amendment right to say so – at a time when the price for doing so would have been paid by her alone.