Category Archives: Regulation

Intermediate Scrutiny as a Policymaker’s Touchstone

As I go on (and on, and on) about, speech regulation must meet a higher bar than ordinary regulation. Outside of a handful of relatively-narrow categories, content-based speech regulation must survive “strict scrutiny.” That’s the most exacting standard; most such regulation can’t get there, and is thus struck down when challenged in court.

Some content-based speech regulation – like commercial speech, and maybe professional speech – is subject to the lesser “intermediate scrutiny” standard.  Content-neutral regulation of speech (the familiar “time, place, and manner” restrictions on speech) is also subject to intermediate scrutiny. Regulation that does not impact speech? Unless another limiting principle applies (e.g., other constitutional rights; antitrust law), such regulation is subject to “rational basis” review – which means it’s going to be upheld by a court so as the regulation passed the laugh test.

While it’s understandable that courts would show deference to legislative and executive bodies in this way, policymakers shouldn’t hesitate to hold themselves to a higher standard. And the intermediate scrutiny standard, even if not legal binding on their actions, is an excellent way to discipline the policymaking process.

But before I get to that, it’s helpful to think of the ways that policymaking can fail. These fall into three broad categories:

  1. Regulating Things that Aren’t Actually Problems.

Making rules is expensive and time-consuming. Every new rule adds to the cognitive burden to those expected to comply with – and enforce – that rule. So it seems fair to expect that any proposed rule be designed to address a real problem. 1

Example: Voter ID requirements

Bad Argument for the Rule: “What’s the big deal? It’s easy to comply.”

2. Collateral Damage

Many rules are well-intentioned, but end up creating so many ancillary problems that their cost – often unanticipated – greatly exceeds their benefit.

Example: HIPAA.

Bad Argument for the Rule: “We’re not worried about those other things – THIS thing is the only thing that’s important.”

3. Ineffectiveness

Some rules are all sound and fury, signifying nothing. They make claims of solving a problem, but don’t advance the cause. Often come in an emotional wrapper.

Examples: Assault weapon bans.

Bad Argument for the Rule: “Think of the children.”

And, of course, many rules display characteristics of two or even all three of these markers of policy failure.

So how can the intermediate scrutiny standard help? Easy – it provides a disciplined mental framework for evaluating the effectiveness of policy. The standard requires that rules:

  • address substantial government interests;
  • directly advance those interests; and
  • do so in a reasonably narrow fashion.

That’s actually a great way of thinking about ALL policy. Because assuming we want effective policies, and aren’t just proposing rules for short-term political gain, tribal belief, or sheer contrariness, 2 we should rightly reject rules if they can’t meet this test.

Substantial government interest? That’s asking the question of whether a rule is actually addressing a real concern. Is there a serious enough problem that we need a rule, and all of the attendant costs and implications of government power that come with it? 3

Directly advancing the interest? That’s getting to whether the proposed rule actually has a chance of working. Does it actually dig away at the problem, or is it just window dressing?

Is it narrowly applied? That’s focused on collateral damage. Does our proposed rule create all sorts of other costs and externalities, quite apart from the issue the rule is trying to address?

Of course, this isn’t always easy. It may be hard to tell whether a potential rule will actually work. Ancillary consequences may not be seen until a Rule is already in place. And motivated reasoning can see advocates of a rule ignore all evidence and argument against their baby.

But assuming we want to enact rules that actually work? There’s a lot to be said for using the intermediate scrutiny standard as our analytical framework whenever evaluating policy.

Notes:

  1. If the objection is that this formulation stacks the deck against rules, well, yes. Rules should have the burden of justifying their own existence. And in close cases, the rule should lose in favor of greater freedom.
  2. A big assumption, I know.
  3. This is particularly key when dealing with Rules that carry criminal sanctions. Given the realities of how enforcement of such Rules works, some have re-styled the “substantial” element of this prong as “don’t support any criminal laws that you aren’t willing to kill to enforce.”

The Awful, No Good, Rule 7.2

My last couple posts have referred to Model Rule 7.2, and the ABA Ethics Committee’s inexplicable unwillingness to consign it to the dustbin of history. But while I have complained about this benighted Rule, perhaps I haven’t gone deep enough on why it needs to unceremoniously kicked to the curb.

Rule 7.2 is the “specific restrictions on lawyer advertising” rule. And it actually has its origins in the days before lawyers COULD advertise. The core of the Rule predates Bates v. Arizona, the seminal 1977 case that found that lawyers have a First Amendment right to advertise. 1 And pre-Bates, it stood for the proposition that lawyers could not advertise:

A lawyer shall not give anything of value to a person for recommending the lawyer’s services.

Instead of recognizing Bates for the sea change that it was and canning this Rule, the Bars simply added a begrudging caveat to it:

A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.

The result is predictable: endless lawyerly hand-wringing over whether a statement is a “recommendation,” whether the cost paid for an ad is “reasonable,” or whether a form of advertising is “qualified” and/or a “lawyer referral service.” Avvo has dealt with ALL of these “concerns,” via state bar ethics opinions, with respect to Avvo Legal Services alone.

And it’s all a complete waste of time. The purpose of these rules is to protect the public, not to enable academic debate about whether a rating is a recommendation. The types of activities that the vague language of the Rule are really getting at are those that are already covered by Rule 7.1: false and misleading advertising. Any marketing transgressions that could constitutionally be prohibited by Rule 7.2 are also prohibited by Rule 7.1. So Rule 7.2 doesn’t add any weapons to the Bar’s enforcement arsenal; it just drives over-compliance and makes it harder for the public to get information about legal services.

A rule that serves no purpose other than to work cross-purposes to its stated intent? That’s a rule that should be eliminated – and with haste.

Notes:

  1. Equally important to the decision in Bates was that consumers have a First Amendment right to receive information about legal services. Unduly restricting the free flow of information – including information provided via advertising – compromises these rights.

What SHOULD Attorney Advertising Regulation Look Like?

I posted the other day about the proposed changes to the ABA Model Rules around attorney advertising. If I sounded frustrated about the glacial pace of change, it’s because it should be manifestly obvious that the attorney advertising rules are a disaster. Our generation of lawyers has inherited a partially-digested bolus of logorrheic, outdated rules from days of yore. And these rules are  supported by pearl-clutching about shadowy horrors, rather than evidence that the rules actually address real harm to the public.

Compounding matters is how lawyers are wired:

1) In an effort to avoid any possible risk to their licenses, most conscientious attorneys over-comply with the rules; and

2) In an effort to provide the widest possible guidance, most regulators and bar ethics committees over-interpret the rules to cover all sorts of activity that can’t legally be limited.

The end result? Consumers get less information about legal services, attorneys feel hamstrung in how they can engage with potential clients, and innovation in the delivery of legal services is hampered across the board.

What’s more, the Rules actually cost the bar in money and attention. As the APRL 2015 Report notes:

In addition to the over-regulation of lawyer advertising that does not serve the legitimate public policy of assuring accurate information about legal services, state regulators (most often Bar associations) spend hundreds of thousands of dollars attempting to defend the regulations in various lawsuits brought by members.

The trifecta! Bad for the public, bad for lawyers, bad for the Bars.

So what should be done? Hey, I’m not just a naysayer – I’ve got solutions! The good news is that the Rules aren’t hard to fix:

Scale the Ad Rules WAY Back

There’s no reason whatsoever for 8,000+ words of attorney advertising rules. 1 Ask any Bar disciplinary counsel; they’ll tell you that they’re focused on the bad actors, and not attorneys who forgot to put a disclaimer in the right place. And they’ll also tell you that the only advertising rule that they need to go after these bad actors is Rule 7.1:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

So let’s gut the Rules. We can start by just flat-out eliminating – entirely – Rules 7.2, 7.4, & 7.5. I’ve never heard a remotely compelling argument for the continued existence of these Rules; they are all just sub-variations on the theme of Rule 7.1.

This isn’t that radical of a position; in fact, it’s what the APRL 2015 Report advocated for. But while the ABA Committee bought this argument with respect to Rule 7.5 (firm names), it has inexplicably retained Rule 7.2 – which, as I wrote about earlier – is the Rule that causes nearly all of the harm.  Time to finish the job and get rid of this outdated, overreaching rule once and for all.

Lower the Stakes

Bars could take a giant step toward removing the chilling effect of the Rules via a simple measure: taking discipline off the table for the vast majority of potential Rules violations. As the APRL 2015 Report notes:

Lawyers should not be subject to discipline for “potentially misleading” advertisements or advertisements that a regulator thinks are distasteful or unprofessional. Nor should they be subject to discipline for violations of technical requirements in the rules regarding font size, placement of disclaimer, or advertising record retention. Regulators should use non-disciplinary measures to address lawyer advertising and marketing that does not violate Model Rule 8.4(c).

Translation: technical compliance with the Rules – to the extent there are technical rules – should be accomplished via outreach and education, not threat of disciplinary sanctions (though sanctions would STILL apply in cases of false advertising or repeated, intentional flouting of the rules).

Bars that did so would be doing an enormous favor to their members, who could then feel comfortable engaging with new technology without concern that they might inadvertently put their licenses at risk.

Institutionalize Tests

Here’s a radical thought: how about testing whether a practice causes any consumer harm, rather than hypothesizing the worst potential outcome?

I know that we as lawyers are trained to “spot issues,” but this training drives way too much tentativeness. Instead of applying the precautionary principle – REGULATE NOW, IN CASE THE BAD THINGS HAPPEN – Bars could try controlled tests.

Say a Bar has gotten a question about an innovative product like Avvo Legal Services. Instead of agonizing for 6-12 months over the potential RPC implications, the Bar could – gasp – have a quick talk with the provider and make a deal: the Bar would explicitly let attorneys know it’s OK to participate, if the provider agrees to feed the Bar data on engagement, complaints, etc. 2 There would also be the understanding that it would be a time-limited test (enough time to get data sufficient to understand consumer impact) and that the Bar could pull the plug early if results looked super-ugly.

A process like this would actually IMPROVE the Bar’s ability to address real consumer harm, while smoothing the road to innovation. Because listen: there’s ALWAYS the potential for harm. Life is not without risk. But without taking some chances, we’ll never see where the big opportunities lie – for lawyers and clients alike.

 

Notes:

  1. It’s telling that the advertising guidance for doctors runs to less than 600 words.
  2. Note to Bars: Avvo would do this deal in a heartbeat.

Incremental Changes Proposed to ABA Model Advertising Rules

There’s a lot of congratulatory talk going on about the “bold” changes proposed for the ABA model rules relating to attorney advertising.

And sure, there are things to like in the proposed changes. The new solicitation rule, in particular, focuses more on substance than form, and contains an exception for solicitations made to experienced buyers of business-related legal services. Those are both positive developments.

But bold change? Naw; more like incremental adjustments to a set of rules that should have been gutted 40 years ago when Bates v. Arizona was decided.

My single biggest disappointment is that the ABA ethics committee didn’t take this opportunity to get rid of Rule 7.2.  This is the Rule that contains the cruftiest, most problematic provisions: those relating to “the reasonable cost of advertising,” restrictions on paying for “recommendations,” and limits on use of “lawyer referral services.” These are the sort of vague terms that attorneys and regulators can’t help but over-interpret in ways that harm consumers and lawyers alike.

It’s not like the committee didn’t have reason to look into the utility of Rule 7.2.  The 2015 APRL Report – heavily leaned on by the committee  in making its proposed changes – makes the case persuasively that Rule 7.2 is unnecessary to protect the public, often unconstitutional in its application, and chilling in its effect on consumer access to information about legal services. Yours truly also submitted comments to this effect.

Yet Rule 7.2 remains. And in some ways, the proposed changes make the Rule even worse. For starters, the definition has been changed to try and make the rule applicable to non-advertising “communications” – despite the fact that these rules can only constitutionally limit commercial speech. And then there’s this little gem that’s been added to the Comments:

“A communication contains a recommendation if it expresses, implies or suggests value as to the lawyer’s services.”

Yeah, like THAT’S never gonna be interpreted too broadly.

Again: attorneys have a hard enough time telling when and where these rules apply. Bar regulators and ethics committees persistently over-apply the rules. And for what? There’s no evidence that the specific ad rules benefit the public. Yet instead of streamlining the Rules, instead of cutting back to the core concept – no false or misleading advertising – we’re getting more of the same old thing.

The ABA ethics committee is holding an open hearing at its Vancouver meeting on February 2, and accepting written comments until March 1. If you’d prefer to see some real change here, please make your voice heard.

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.

What if We Just “Certified” Lawyers Instead of Licensing Them?

Last week, I attended the FTC’s second Occupational Licensing Roundtable in Washington, D.C. The Roundtable – titled “The Effects of Occupational Licensure on Competition, Consumers, and the Workforce: Empirical Research and Results” – consisted of economists delving into the costs of occupational licensing. The prognosis is grim. Licensing requirements cost society a great deal (primarily in the form of higher prices and lack of economic freedom for workers to pursue a trade), while returning negligible benefits. Although most comments submitted to the Roundtable addressed other, more recently-licensed professions, Avvo and Responsive Law both submitted comments briefly summarizing some of the empirical data on the cost of legal licensing.

This is not to say that we believe attorneys should be wholly unregulated. Many of the costs of licensing stem from the breadth of the legal monopoly and the numerous restrictions on lawyer marketing and service delivery. These costs could be ameliorated simply by adopting a simpler, narrower licensing regime. But I was struck by a point of consensus by the Roundtable participants: that certification could replace licensure and deliver a massive benefit to consumers (in the form of lower cost, more innovation, and better access) while not meaningfully impacting public protection.

h/t The Locker Room

How would this work in the law? In a world of “certified” lawyers, only those possessing the qualification could use the title “lawyer.” But others could do most or all of what lawyers do, so long as they didn’t try to pass themselves off to the public as certified lawyers. There might be areas (like representing parties in litigation) where providing services would be limited to those possessing certification, but such areas would be few and far between.

Shocking? Not really; that’s largely how legal practice works today in many parts of the world, including England. In a world of certification, clients would have nearly all of the same public protective benefits of licensing while enjoying massively more choice in legal service offerings. It would even be better for lawyers, as certification should be more portable between states than licensure is (and lawyers could choose to still practice in another state regardless, assuming they are willing to forego certification). What’s more, local court-based certifications could flourish, getting back to one of the original purposes of geographic licensing – ensuring that local lawyers are experienced with local law and court procedures.

Lots of food for thought, and the FTC’s continued work in this area will bear close watching.

LegalTech Startup TikD Sues Florida Bar

So the same day I ponder the question of ethics opinions and antitrust, a lawsuit gets filed against the Florida Bar – alleging antitrust violations related to, in part, an advisory ethics opinion!

This will bear watching. The plaintiff in the case is “Tikd,” an innovative service that helps consumers get legal help – with highly predictable outcomes – when dealing with routine traffic tickets. And the lawyers for Tikd are Ray Abadin (who was President of the Florida Bar just a couple of years back) and Pete Kennedy, the Austin, TX antitrust lawyer who successfully represented LegalZoom and Zlien in various UPL fights with states bars.

The ethics opinion at issue apparently deals with both UPL and fee-splitting concerns with Tikd, and it’s not even clear the opinion even exists. But Tikd says its competitors are spreading the word that the opinion is out there, and the Bar isn’t disavowing it – or even meeting with Tikd to discuss the matter.

For the Florida Bar, this is yet another illustration of the problem with ethics opinions in areas involving competition and advertising. Bars are wired to give conservative advice, but what they really should be doing in these areas is not opining at all. Rather, they should flip the script and adopt a policy that affirmatively encourages innovation in the delivery of legal services, and only looks to enforce the Rules in reaction to evidence of public harm.

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.

North Carolina Defeats First Amendment Defense to UPL

North Carolina – which has one of the most specific definitions of “the practice of law” going – has just won an unlicensed practice of law victory over an association that wanted to provide legal services to its members.

The outcome wasn’t a huge shock; North Carolina, like all states, prohibits non-lawyers from practicing law. As the association (whose ostensible purpose was to provide legal advice and counsel to small and mid-sized employers) is a corporation, it can’t practice law. That also means it can’t hire lawyers to provide legal services to the public. Easy win.

But in getting to this outcome, North Carolina had to overcome an objection that’s rarely seen: that the state’s UPL restrictions violate the First Amendment.

There’s a tension between professional regulation and the First Amendment, for much of “the practice of law” involves expressive acts. But while this has been heavily litigated in the professional advertising context, there’s been precious little judicial guidance where “occupational speech” regulation is concerned.

So it’s notable that this case addresses the issue, and perhaps understandable that the decision would botch the analysis so badly.

How’s that? The North Carolina case cites to a recent Fourth Circuit decision, Moore-King v. County of Chesterfield 1 for the proposition that professional regulation of speech is not subject to the First Amendment.

That’s quite obviously wrong. Even regulation of professional advertising speech is subject to First Amendment scrutiny. And there have been a number of cases recently involving regulation of doctors’ speech while treating patients – those cases have taken First Amendment coverage as a given, even as they wrestled with whether intermediate or strict scrutiny of the regulations should apply.

In fact, the Moore-King case involved a licensing requirement for fortune-tellers, and it stands for a much more limited proposition than that adopted by the District Court in North Carolina: that “generally applicable licensing provisions” don’t raise First Amendment concerns. This in no way means that all professional regulation is outside the scope of the First Amendment.

What’s more, not even all licensing requirements get a pass from First Amendment scrutiny. The Fourth Circuit in Moore-King takes pains to distinguish the County’s straightforward licensing requirements from regulations that banned the sale of fortune-telling services, and also notes that the government does not have “carte blanche” in creating these regulations.

None of which is to say that the  North Carolina court reached the wrong decision – it likely did. The Bar has a generally applicable licensing scheme, and it’s hard to imagine that a wholesale challenge to the practice of licensing lawyers would ever succeed. But it’s important to recognize the limits of this occupational licensing exception, and reinforce the fact that attorneys do not check their First Amendment rights at the door as the price of being called to the Bar.

Finally, while the legality of a license requirement for attorneys may be a settled question, the same cannot be said for the contours of that legal monopoly. For it’s one thing to have a generally applicable licensing requirement before people can represent others in court, but it’s quite another to extend that requirement to any and all who would sell advice and counseling on matters that seem “legal.”  Most in the legal profession take it for a given that such “legal advice” is restricted to the monopoly of lawyers, but that seems far from clear given the First Amendment issues in play. 2

Notes:

  1. 708 F.3d 560 (4th Cir. 2013).
  2. And watch the Institute for Justice, which is litigating several cases involving First Amendment challenges to occupational licensing restrictions. The latest of these – just filed in Florida – deals with restrictions on providing compensated dietary advice.