Category Archives: Occupational Speech

Supreme Court Closes in on Regulation of “Professional Speech”

The facts that underlay NIFLA v. Becerra are ugly in a vaguely dystopian way. One one side, you’ve got “Crisis Pregnancy Centers,” outfits that reach out to pregnant women in extremis and offer them counseling and a variety of other resources. Oh, alongside a heaping helping of MY SWEET LORD JESUS and a big vacant hole where one pregnancy-resolving solution, abortion, might lie. On the other side? An overweening state government that has found a “solution” to Crisis Pregnancy Centers, and it is “force them to tell pregnant women that hey, abortion is an option – and the state might pay for it!”

So yeah: religion-fueled deception, or nanny state compulsion? Absent an uber-partisan leaning to one side or the other (a leaning that allows you to look past manipulation of the vulnerable or government-mandated ventriloquism), you’re not going to see any angels here.

However, as we’ve got expansive free speech rights here in the US of A, the balance lies heavily on the side of the bible-thumping manipulators. The “more speech” solution we’ve arrived at counts on more information in the marketplace of ideas – not the heavy hand of government intervention. And that goes for compelled speech as well. While the government can compel certain speakers to communicate all sorts of factual information (think warning signs, food labeling, some disclosure requirements), the First Amendment prevents the state from going further and requiring that speakers transmit less-factual, more-controversial messages. So it’s not surprising that California lost on this one.

What interests me about the case – and why I wrote about it when it was at the Circuit level – is the implications it has for lawyer regulation.

Implication 1: Many state bar rules contain extensive disclosure and disclaimer requirements. Some of these – such as requirements that contingent fee advertising disclose that clients may have to pay costs and court fees – are purely factual information that directly goes to the terms under which the advertised service is being offered. In these narrow circumstances, Bars have ample room to regulate. The standard under Zauderer v. Ohio is even more lax than the intermediate scrutiny applied to other forms of commercial speech regulation: such disclosure mandates will be permitted as long as they are not “unjustified or unduly burdensome.”

But as with California, some regulators have viewed this as license to impose all manner of disclaimer requirements. New Jersey requires that any comparative lawyer advertising be disclaimed with “No aspect of this advertisement has been approved by the Supreme Court of New Jersey;” 1 New York requires that that attorneys advertising that they have been certified as a specialist by another state do so only when such statement is accompanied by a disclaimer admonishing that “Certification granted by the [identify state or territory] is not recognized by any governmental authority within the State of New York.” 2; and Pennsylvania seems to have require disclaimers for all manner of advertising. 3

A big part of the problem is that courts often miss the nuance that the lax Zauderer standard doesn’t apply to ALL compelled speech. NIFLA v. Becerra makes this explicit, pointing out unequivocally that the standard only applies to disclosure mandates limited to “purely factual and uncontroversial information about the terms under which . . . services will be available.” What’s more, the court goes on to note that even basic factual disclosures must be supported by some showing that the disclosure is necessary to remedy a “potentially real not purely hypothetical” harm.

Newsflash: many Bar disclaimer requirements go well beyond the “purely factual and uncontroversial” – and they sure as hell aren’t supported by any evidence that justifies the speech compulsion. Will this be the impetus Bars need to clean up their regulations?

Implication 2:  More interesting is the Court’s handling of “professional speech.” This category of expression is one of the few remaining holes in First Amendment jurisprudence. Despite the widespread regulation of professional speech (and consider that UPL restrictions are nothing more than a form of speech regulation), there are NO Supreme Court cases addressing how such speech can be regulated. 4 In NIFLA, the Ninth Circuit found that the notices at issue  were professional speech, and – apparently finding a new category of speech regulation – determined that such regulation must meet intermediate scrutiny.

The Supreme Court, however, wasn’t having it:

“But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” [citations omitted]. And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” United States v. Alvarez, 567 U. S. 709, 722 (2012) (plurality opinion).

. . . In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny.”

While it’s a little disappointing the Court didn’t go so far as to say “there is no First Amendment exception for professional speech,” this decision should make clear that professional speech regulation is at least subject to intermediate scrutiny. For the Bars, it’s yet another reminder of the pressing need for a more orderly, open, evidence-based, and – dare I say it? – professional regulatory process to ensure this standard can be met.

Notes:

  1. New Jersey Rules of Professional Conduct 7.1(a)(3).
  2. New York Rules of Professional Conduct 7.4(c)(2).
  3. See Pennsylvania Rules of Professional Conduct 7.2.
  4. Yes, there’s Planned Parenthood v. Casey, but that deals with informed consent requirements, which are considered “speech incidental to conduct.”

Disclosing Public Info About Clients

Earlier this month, the ABA issued advisory opinion 480, which says that attorneys cannot reveal client information even if that information is in the public record. The opinion points to Model Rule 1.6, which states:

A lawyer shall not reveal information relating to the  representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

This rule is certainly a statement of good practice. Attorneys absolutely should be guarded in how they communicate about their clients’ matters. In fact, they should err on the side of caution when it comes to talking about their clients. I’ve hired a lot of lawyers over the last 20+ years, and I can say, without exception, that I would expect that each and every one of them would ask my permission before talking publicly about ANYTHING related to the representation that I might possibly have a problem with – even if that information is in the public record.

But what an attorney should do is a completely different question than that of what an attorney is compelled to do.  The distinction between best practices and legal compulsion (a distinction lawyers should do a better job of appreciating, btw) is the critical thing to keep in mind in understanding why ABA opinion 480 is wrong.

Why? Because we attorneys don’t give up our First Amendment rights when we get licensed. And while these rights leave room for appropriate regulation of professional speech (even if the exact standard for such regulation remains undetermined), there’s little reason to believe that a blanket rule of the sort adopted by the opinion would pass Constitutional scrutiny.

In reaching its conclusion, the opinion stretches to find a way around Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), the Virginia Supreme Court case that dealt directly with a state bar arguing that its rules prevented lawyers from writing about matters of public record. To do so, the opinion states  “the Committee regards Hunter as limited to its facts.”

Well, that’s nice. But is that limiting distinction appropriate? Let’s go to the opinion in Hunter:

The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

The ABA opinion seems to find it distinguishing that there was no evidence to support the Virginia Bar’s opinion. That’s true – there wasn’t.  But the implication of this isn’t that Hunter is an outlier. Rather, it’s that any attempt to punish an attorney for disclosing public record information would need to be supported by evidence.

What’s more, that evidence – and the particular application of Rule 1.6 to punish  an attorney for such disclosure – would most likely need to meet the bar for strict scrutiny. As the Hunter decision notes:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.

Well, yes – this is a fundamental cornerstone of free speech law. While one can imagine scenarios where this hurdle could be met, they certainly aren’t going to be the norm.

I’m sure the drafters of Opinion 480 had their hearts in the right place, and were thinking of client protection. It’s an understandable impulse, and like I wrote at the outset, this is an area where attorneys should go far beyond what the Rules require. But we can’t turn a blind eye to the First Amendment – and read that “should” as a “must” – simply because we know what the best practice is.

Reject the “Professional Speech” Doctrine?

I’ve written quite a bit about the regulation of professional speech (most recently here), and how this area is curiously under-developed from a First Amendment perspective. The closest thing we’ve seen to the Supreme Court addressing professional speech regulation is the 1985 case of Lowe v. SEC, and that case – like most lower court cases dealing with professional speech – has far more to do with the government’s right to require licenses than it does with how the government can restrict the speech of licensees. 1

Meantime, we’ve had Supreme Court cases addressing the First Amendment implications of everything from “crush films” to violent video games to drug-promoting messages in the schoolyard. Hell, we’ve had NINE Supreme Court cases plunging the depths of the First Amendment constraints on attorney advertising regulation.

So why so little attention to the Constitutional dimension of regulating non-advertising professional speech? Especially when some 30% of the population now works in a profession requiring a license from the government?

There ARE cases, winding their way up the appellate ladder, that may cause SCOTUS to address the question within the next few terms. But I’ve just come across this recent law review article penned by Widener Law School Dean Rodney Smolla (First Amendment scholar and author of, among other things, the two-volume resource “Law of Lawyer Advertising“) that makes the case that there should be no “professional speech doctrine.”

Rather than subject professional speech regulation to “intermediate scrutiny” analysis (the approach taken by the 11th Circuit in the infamous “Docs v. Glocks” case), such speech should be protected to the same extent as core political speech, Smolla argues. Referring to the Paul Sherman article I wrote about here, Smolla makes the case persuasively that regulation of professional speech should be subject to strict scrutiny – the same standard applied to almost all other forms of content-based speech regulation. While this is the hardest test for regulation to pass, Smolla makes an interesting observation: that in all of the traditional consumer-protection contexts upon which occupational speech regulation is defended, the strict scrutiny test is actually easily met:

No special “professional speech” doctrine is needed, however, to protect the consumers of professional services from expression by professionals that is false, misleading, criminal, tortious, or palpably unethical in some traditional sense (such as speech
covering up a conflict of interest). Application of the strict scrutiny test will already allow for such regulation.

So what’s the basis for regulation beyond these areas? Smolla continues:

What is then left over is the very thin, conclusory, and paternalistic argument that consumers who receive advice from professionals, including advice that often implicates important matters of public discourse, need the heavy hand of the state to protect them from over-reaching and abuse.

The First Amendment, however, is grounded in exactly the reverse set of assumptions. The First Amendment presumes that people are their own best judge of what to say or not say, or listen to or not listen to. Clients do not have to listen to the advice they are receiving, or even continue the relationship.

Exactly right. For as Smolla points out, classic professional speech regulations – like prohibitions on breaching attorney-client privilege or requirements that doctors obtain informed consent – don’t point to a need for a relaxed regulatory standard: they are simply evidence that meaningful regulation can survive strict scrutiny. And perhaps this way of thinking can offer a path to clearing out the excesses of less-meaningful occupational speech regulation.

Notes:

  1. Although the First Amendment implications of whether to require a license have also not been adequately addressed by the courts. While laws of general applicability – like a business license requirement – are fine, laws requiring a license before engaging in expressive activity may also run afoul of the First Amendment. The Bars may have some issues here, as the giving of legal advice – an expressive activity – is limited, on pain of criminal sanction, to those possessing licenses issued by the state.

Ethics Opinions and Antitrust

So a couple of weeks ago I was at the ABA’s Third Annual UPL School in Chicago – a gathering of those bar authorities dedicated to rooting out the unauthorized practice of law. And I have to say – it was a strangely chastened bunch. The specter of North Carolina Dental Board v. FTC hung heavy in the air, and many in attendance claimed that they no longer issue advisory opinions or cease-and-desist letters. Rather, they do one of two things when they get complaints: dismiss, or file a lawsuit.

This isn’t a bad thing. Advisory opinions and C&D letters can have a toxic, chilling impact, stopping all sorts of activities that are well outside the boundaries of the legal monopoly. In fact, this is the sort of practice that got the North Carolina Dental Board into hot water – dentists using C&D letters to shut down tooth-whitening services. And it’s what we see in the more egregious examples of UPL enforcement. Being more cautious when wielding the regulatory club isn’t a bad thing, so long as regulators don’t overcompensate and abandon ALL attempts to enforce UPL. 1

But I have to wonder: is the UPL side of the regulatory house not talking to the legal ethics side? Because the same issues exist there. North Carolina Dental stands for the proposition that Bar regulators can lose their state action antitrust immunity for anti-competitive behavior. And what’s more, this potential liability also carries through to the individual members of the Bar boards and committees that make these determinations.

Advertising ethics opinions – and advertising review boards, in those states that employ them – can have the same sort of anti-competitive impacts as UPL letters and opinions. In all such cases, potential competitors are being elbowed out or burdened. The fact that in the advertising context those competitors are primarily fellow members of the Bar doesn’t make a difference. Bar Ethics Committees – which are comprised of market participants – are issuing ethics opinion that limit competition. The do so by chilling the ability of other members of the Bar – members who may not enjoy Bar leadership positions – to offer information about legal services to the public. They may even limit non-lawyer competition with Bar lawyer referral services.

As with UPL, there are ways Bars can regulate such advertising activity without taking on antitrust risk. Doing so requires an open, transparent, and evidence-based showing that the consumer protection justifications for its restrictions outweigh the anti-competitive effects. Or at least “active supervision” by actual state government actors. But that’s not the typical closed ethics opinion approach, which we continue to see even now two years after the decision in North Carolina Dental. A handful of states – like Virginia, North Carolina, Oregon, and Washington – at least seem to be aware of this concern. But it’s odd that the cautious approach on the UPL front has yet to be matched by most regulators on the legal ethics side.

Notes:

  1. Despite my skepticism about the breadth of the legal monopoly, I’ll readily acknowledge that there are consumer-impacting UPL practices out there, among them non-lawyers pretending to be licensed and the various related forms of “notario” fraud.

Speech Restrictions on Judges

More on occupational speech restrictions: I’ve come across this recent piece by Texas A&M law prof Lynne Rambo, dealing with First Amendment issues around judicial speech.  Rambo’s article notes that “surprisingly, most of the state and federal courts deciding judicial discipline cases based on extrajudicial speech have not addressed the constitutionality of the code provisions involved.”

No kidding! That’s because there’s been precious little judicial guidance in general when it comes to the tension between the First Amendment and occupational speech restrictions, and next to none where lawyers and judges are concerned (this, despite the law being the most speech-intensive of the licensed professions). Nonetheless, what little there is out there points in the general direction of occupational speech being regulated subject to the same intermediate scrutiny standard applicable to commercial speech.

We also know that occupational speech regulation only goes so far. Lawyers don’t waive their First Amendment rights as a condition of Bar membership; they are free to opine and express themselves any way they want (or at least, to the same extent as any other citizen) as long as doing so doesn’t involve their clients or matters.

But what about judges? Is there something special about their roles that would lend itself to greater reach for occupational speech regulation? Professor Rambo makes the case in the affirmative, arguing that judicial speech – even far off the bench – should be regulated via the Pickering test applicable to public employees.

What’s the Pickering test? It’s a balancing test, which looks at the the interests of the employee in commenting on matters of public concern and the interests of the State – as the employer – in promoting the efficiency of the public services it performs through its employees. It doesn’t apply to things an employee might say as part of his or her job (it’s not a First Amendment violation for a government employer to discipline an employee for those), but rather only to those things a government employee says OUTSIDE of the job that may cause problems for the government employer’s mission.

That’s not much of an issue for most government employees, but it’s different for judges given their position in society. Judges are highly esteemed and viewed as neutral arbiters. The courts are very attuned to ensuring that judges avoid even the appearance of bias. A judge could be highly competent – and a paragon of objectivity – but that judge staking out positions on one “side” or another of contentious issues in the community will cause no end of trouble for the court.

As Rambo notes, the interest of the government employer in the Pickering test is “promoting the efficiency of the public services it performs through its employees.” She suggests that in the judicial context this means something more: protecting the judiciary from extrajudicial statements by judges that compromise “either the actual or the perceived independence, integrity or impartiality of the court.”

That sounds right, particularly since the “efficiency” of the government institution that is the court is best measured not by how quickly it churns through cases but rather by how independent and impartial it can be – both in reality AND appearance. And that means that judges – unlike lawyers – may be subject to occupational speech regulation that reaches far beyond the confines of the courtroom.