Category Archives: Regulation

More Protection for Commercial Speech

It’s been nearly 5 years since the Supreme Court’s last big commercial speech case, Sorrell v. IMS Health. Sorrell is interesting because it’s one of the only commercial speech cases to address something other than out-and-out advertising.  But it’s interesting in another way, too: it may stand for the proposition that some commercial speech regulation is entitled to even more protection.

How’s that? A recent case out of the Ninth Circuit does a great job of laying out the groundwork. Starting on page 15 of the slip opinion, the decision in Retail Digital Network v. Appelsmith sets out a case for holding that Sorrell dictates that content- or speaker-based restrictions on commercial speech are subject to “heightened scrutiny” somewhat beyond that required under the commercial speech doctrine.

We don’t know how far beyond; simply that the state is held to a higher standard than intermediate scrutiny and a lower standard than strict scrutiny (the latter of which is nearly impossible to meet). But let’s pause and note how unequivocally the court puts it:

Sorrell modified the Central Hudson analysis by requiring heightened judicial scrutiny of content-based restrictions on non-misleading advertising of legal goods or services.

Central Hudson already held the state to the burden of meeting intermediate scrutiny; now any such regulation must meet an even-higher bar.

In the regulatory world that this blog is concerned about, this should mean that attorney advertising regulators become entirely focused on the consumer protection nature of their mission. After all, Sorrell puts to bed any idea that attorney advertising rules can be applied mechanically.

Will that happen overnight? We’ll see. Many of the attorney regulators I’ve talked to have long dealt with their advertising rules in a very consumer-centric way anyway, choosing their fights carefully and only going after bad actors – and then going after them HARD. But others have employed their rules rigidly, seemingly unburdened of the knowledge that their regulatory interpretations must be mindful of free speech guarantees.

For this latter group – more grocery clerks than consumer protection watchdogs – it’s safe to say that there will soon be an awakening of awareness, one way or another.

Must You Be Licensed to Call Yourself a “Lawyer?”

Apparently not, at least if we are to follow the recent Fifth Circuit decision in Serafine v. Branaman, in which a political candidate was allowed to refer to herself as a “psychologist” despite lacking a license – or the technical qualifications – to practice that profession.

But let’s not get too hasty. The Serafine case doesn’t represent a license-to-be-unlicensed, as it were. Rather, it simply offers a good illustration of the limits of professional speech regulation.

The key point in the case is that Serafine wasn’t engaging in commercial speech. She wasn’t trying to attract clients by claiming to be a psychologist when she wasn’t licensed. Rather, she was making a statement as part of a political campaign.

There is little question that the state has an enforceable interest in keeping unlicensed professionals from “holding out” as being licensed; doing so is flatly deceptive and bad for consumers. But get outside of this commercial context and the state’s got to make it past strict scrutiny if it wants to regulate the content of speech. And that? That’s next-to-impossible, as we’ve seen from recent, failed attempts to regulate away lying in political campaigns and when referring to military honors.

What’s more, while Serafine wasn’t licensed in Texas, and didn’t hold a doctorate from a program that would qualify her for such a license, it wasn’t like she was just making things up from whole cloth. She had completed a four-year post-doctoral fellowship in psychology at Yale. Her Ph.D in education was focused on psychology. She was a professor in the psychology departments at Yale and Vassar. She taught seminars and provided one-on-one counseling sessions on personal growth and relationships. And so on. So it doesn’t seem unreasonable that she would characterize herself as a psychologist when speaking broadly (and non-commercially) about her background.

The Serafine case doesn’t nearly begin to answer all of the questions that swirl around professional speech regulation. But it does nicely point out that there is a fundamental difference between commercial and non-commercial professional speech. 1 While the professional regulators will often have an interest in regulating the former, they should have little-to-no influence over the latter.

h/t The Volokh Conspiracy

Notes:

  1. Or perhaps more accurately, “professional speech” and “non-commercial speech by professionals.”

Rent-Seeking Dentists, and “the Practice of Law”

Really interesting article in the Seattle Times this morning about how our state’s dentists have successfully (so far) blocked Washington residents from having access to dental therapists.

These therapists (who are licensed in the states that allow them) are akin to physician assistants; they can perform a wide range of basic dental care procedures. And as with PA’s, dental therapists offer the promise of wider, cheaper access.

And of course, some – but not all – dentists are afraid of having to compete with these folks. So they lobby the state to preserve their monopoly. It’s akin to – but in some ways worse – the efforts of North Carolina dentists to foreclose tooth-whitening services as the unlicensed practice of dentistry.

I mean, it’s one thing to try and make it harder and more expensive for suburban moms to get blindingly white chompers at a mall kiosk; it’s another to force the poor to resort to do-it-yourself dentistry in order to get relief from tooth pain.

It’s a classic case of legitimate public interest – and there IS a public policy reason for maintaining professional licensing standards for dentists, just as there is for lawyers – being stretched to preserve the professional monopoly. 1

But just as with lawyers, there’s a point at which “protecting the public” becomes counter-productive. The monopoly extends too far, and big chunks of the public simply go without the services of the licensed professionals. It’s hard to see how that’s better, particularly when there’s an option that still preserves licensing AND expands access.

(I would also imagine that more strategic dental institutions would see the benefits of dental therapists; they could easily allow for greatly expanding a dentist’s reach and referral possibilities.)

Two thoughts on how this relates to lawyers:

First, as I’ve long harped on, the market for legal services is fundamentally broken due to a rigid-and-expansive definition of “the practice of law.” As with dentists sweeping all tooth-stuff into “the practice of dentistry” – and thus excluding lower-cost, more widely available offerings – the bars sweep all law-stuff into “the practice of law,” with the same effect on the public. 2

Secondly, the Washington State Bar shouldn’t get a pass here because they’ve allowed for “Limited License Legal Technicians.” These state-licensed professionals are a very tentative step in the right direction, but there’s a reason the first word in the title is “Limited:” there’s not much they can do, and they’ve got to jump through a whole lot of hoops to do even that.

There’s certainly a place for consumer protection. But just as dentists are spewing nonsense when they argue that therapists threaten public health (despite all evidence being to the contrary), the bars are doing the same when they argue that only lawyers can help consumers with anything related to the law.

Notes:

  1. This kind of rent-seeking is common to licensed professionals, and it’s not hard to see why: cry “consumer protection” or “customer safety,” set up licensing rules and other barriers to entry, and then enjoy the higher prices that come along with your state-sanctioned monopoly.
  2. And this problem is exacerbated in legal due to the inability of non-lawyers to even invest in the provision of legal services.

“Docs and Glocks” Case Gets Messier

I’ve written before about Wollschlaeger v. Governor, the case dealing with Florida’s law preventing doctors from making certain inquiries of patients regarding firearms ownership. As I said at the last go-round, the 11th Circuit decision is a mess, finding the law constitutional – despite the obvious limitation on professional speech – under an intermediate scrutiny standard.

Well, now they’ve gone and made it messier. Reconsidering the decision on the court’s own motion, an 11th Circuit panel has now issued a decision that passes on determining what standard should apply by breezily concluding that Florida’s law survives even strict scrutiny.

That’s pretty crazy. Strict scrutiny is a really high bar to clear; content-based speech regulations almost never get there. And they don’t get there in this nutty of a way, with the court’s leading argument being that the law preserves the Second Amendment rights of Floridians from infringement by doctors.

Doctors aren’t state actors, and they’ve got no authority (outside of super-edge-case commitment scenarios) to do the first thing about anyone’s guns. So this “protect the Second Amendment” business is just baffling as a justification for regulation.

The case does include a nice, thorough discussion of occupational speech regulation and why it is so unsettled from a constitutional perspective. It’s almost as if the court was about ready to follow that with renewed adoption of the intermediate scrutiny standard for occupational speech regulation, but wimped out in the end.

There is a silver lining: this is one more reason for the Supreme Court to take up the issue of occupational speech regulation, and put to bed once and for all what the proper test for such restrictions should be.

Updated 3/2/16: The 11th Circuit has agreed to rehear the case en banc, so this decision has been vacated.

What Speech Regulation Tells Us About Gun Regulation

This blog has always been about the uneasy intersection between the First Amendment and lawyer speech regulation. I write and speak about First Amendment stuff all the time; it’s integral to my work. So I find it easy to look askance at those who try and trample on First Amendment rights.  But it’s weird to me that people who would do the same – fight hard for the First Amendment – have such a hard time treating the right to bear arms in the same way.

1A 2A Venn Diagram

It shouldn’t be this way: the Supreme Court has held that the Second Amendment encapsulates an individual right, just as surely as the First Amendment does. And while any individual might treasure one right more so than another, that’s not how the law operates. So perhaps some direct analogies from how speech regulation works will help in the understanding of how gun regulation can work – and how it can’t.

Let’s start here: free speech and gun rights aren’t absolute. You can’t say whatever you want, wherever you want, however you want. And you can’t carry or use any weapon you want, wherever you want, however you want. 1

Exceptions

There are a handful of categorical exceptions to the First Amendment – think defamation, child pornography, true threats, etc. When thinking about the Second Amendment, these exceptions can be analogized to the one big categorical exception to the Second Amendment: the right of the state to prohibit “dangerous and unusual” weapons. 2

So let’s say the First Amendment-excepted category of obscenity is analogous to dangerous and unusual weapons. Both concepts – “obscenity” and “dangerous and unusual” – are a little vague, but at least they allow for fencing in the grounds for debate. This is useful, when talking about the Second Amendment, due to the sheer amount of misinformation and emotion-based arguing that goes on. It disciplines the discussion. Instead of bemoaning “weapons designed specifically to kill people with brutal speed and efficiency” (as the New York Times does in its front-page editorial calling for gun control), we have to ask the more specific and pointed question of whether a particular category of weapon is sufficiently “dangerous and unusual” to qualify for a ban. Not doing so – adopting the rhetorical stance of the NYT – is, to go back to my analogy, the equivalent of arguing that some form of erotica should be banned as obscene because it offends Aunt Gertrude’s bluenose sensibilities. So doing is subjective and sloppy.

We’ve also got to do something the NYT leaves out in its emotion-based argument: acknowledge that self-defense is a legitimate and long-standing right underpinning the Second Amendment. And if you want a weapon for self-defense, you want one that is “designed specifically to kill people with brutal speed and efficiency.”

It’s easy for the NYT – and a lot of its readers who live comfortable existences and who are unfamiliar with/afraid of guns – to pooh-pooh the importance or usefulness of the right of self-defense. But back to my First Amendment analogy: the NYT would be the first to defend the idea that the First Amendment protects all sorts of expression that the vast majority of people would find little value in. And just as it’s not a winning First Amendment argument to contend that the vile behavior of the Westboro Baptist Church should be banned because it’s ugly and harmful, it’s not a winning Second Amendment argument to contend that guns are ineffective or unnecessary for self-defense. 3

There’s still plenty of room for debate about what types of weapons should qualify as “dangerous and unusual.” The quality – and usefulness – of the gun control debate would improve markedly if it moved there.

Restrictions

Besides the small number of categories of expression that are excepted from First Amendment protection, there are a number of other categories where expression can be regulated. The primary ones include:

  • Content-based regulations – technically, the state can regulate the content of speech, but such regulations have to survive strict scrutiny. As a practical matter, this means that such regulations almost always fail unless the content of the speech falls into one of the limited categories of exception to the first amendment.
  • Non-Public Forums – the government has far more leeway to regulate speech in non-public forums, like government offices and courtrooms.
  • Occupational speech – a somewhat ill-defined area that I have written about at some length. The government can, to a degree still undetermined by the courts, regulate certain types of speech by licensed professionals.
  • “Time, place, and manner” restrictions – These regulations don’t favor a particular type of content, but restrict all expression in a particular way. Such regulations need only meet intermediate scrutiny – which still means the government has the burden to show that a regulation serves an important government goal, is narrowly tailored to achieve that goal, and preserves ample other means of communication. Lots of regulation falls into this category: sign size restrictions, noise ordinances, etc.
  • Commercial Speech – my favorite topic! Advertisements can be regulated, subject to the same intermediate scrutiny standard used for time, place and manner restrictions.

So what’s our analogy the Second Amendment? How would we evaluate proposed gun control measures that fall short of an outright ban on a class of weapons?

I think – and I realize this area is still being developed, as lower federal courts have taken a wide variety of approaches to the standard of review for gun restrictions – that such laws would be analogous to content-based regulation or commercial speech, depending on the severity of regulation.

Regulations that act as de facto bans, or otherwise substantially interfere with the exercise of Second Amendment rights, would be subject to strict scrutiny. Other, less intrusive regulations, would be subject to intermediate scrutiny.

A lower standard of review is justified for commercial speech based on the hardiness and objectivity of advertising compared with other forms of speech. A similar type of argument could be made that the lesser forms of gun regulation fall into a category where the government should have a little more room to regulate given the inherent dangerousness of firearms.

Thus, advertising regulation = gun regulation (short of bans on a whole category of weapons).

If the government wants to regulate advertising, it’s got the burden of showing that the regulation meets a three-prong test: an important government interest, regulation that directly advances that interest, and regulation that is no more expansive than necessary to advance that interest. Would-be advertising regulators rarely have a problem with the first prong – there are lots of important government interests. Yet they fail this test all the time, typically in one of two ways:

  • They pass laws without any empirical evidence that the law will actually do anything (failing the “direct advancement” prong), or
  • They pass laws that are wildly overbroad – “solving” the problem by infringing on all sorts of protected expression (thus failing the “no more expansive than necessary” prong).

Applying this test to gun regulation nicely frames the debate, by making us consider the efficacy and scope of any proposed regulation, rather than arguing based on emotion or magical thinking.Thus, applying the commercial speech analogy, the questions “why should anyone be allowed to have an assault rifle” or “why should magazines holding more than 10 rounds be allowed?” must be reframed as “could we directly advance an important government interest in a narrow way by restricting assault rifles or large magazines?” We could then look at the data and determine whether such regulations would be effective and not too broad. 4

There are probably lots of “commonsense gun restrictions” that could meet this test. I have to believe that the interests of gun control advocates would be better met by engaging the argument at this level – the level of sober constitutional scrutiny – rather than continuing the hysterics exemplified by the New York Times editorial. But for that to happen, people have to recognize that Second Amendment rights are important, too – we don’t get to pick and choose the rights we want to support.

Notes:

  1. Important point: this principle is not, as a matter of law, remotely controversial. If you disagree with it, if you think that the law has no legitimate limitations on the rights of free speech or firearms whatsoever, you might as well stop reading now. Also: when talking about free speech and weapons rights, the first thing to remember is this: government action. The first and second amendments protect our rights with respect to the government. They have no bearing on whether Starbucks can prohibit patrons from open-carrying guns, or eject the over-caffeinated patron who launches into a polemic while waiting their next triple soy latte.
  2. There are other categorical exceptions to the Second Amendment – possession by felons, concealed carry, etc. – that aren’t important here.
  3. That argument is also empirically wrong – ask anyone who lives in a dangerous neighborhood, way out in the sticks, or who had to manage in New Orleans in the days after Hurricane Katrina – but my point is that the right of self-defense-by-firearm is settled law, so it’s meaningless to argue over it.
  4. And for what it’s worth, back in October the Second Circuit did just that, finding that New York and Connecticut’s bans on large magazines and certain types of assault rifles meet intermediate scrutiny and are constitutional.

Legal Forms & Legal Advice

I was speaking at an Evolve Law event in Los Angeles last week, and had a conversation with Derek Distenfield, who operates a business called NextGenJustice. I hadn’t heard of it, but that’s because Derek had changed the name from “Legal Docs By Me.”

THAT I had heard of. Kind of a brick-and-mortar version of LegalZoom, Legal Docs By Me was a place people could go to get basic legal forms to accomplish things like uncontested divorces, name changes, and small business formations. I’d run across the company when I read that the New York Attorney General’s office had cracked down on it for the unauthorized practice of law.

Apparently the company entered into a consent decree with the NYAG and changed its name. Unfortunately, this hasn’t spelled the end of the company’s issues, as the NYAG is now going after NextGenJustice for violating the terms of the consent decree. 1

NextGenJustice is also expanding to Florida, where, predictably, it is also facing questions about UPL.

There shouldn’t be any question that selling forms isn’t the unauthorized practice of law. But what about providing advice to those who walk into his locations looking to buy a form? I asked Distenfield how his business handles the questions that are going to naturally come up from buyers – “how do I fill this out,” “what goes in box 12a,” etc.  He says the store employees don’t address these, instead referring customers to local attorneys.

Which is great, I suppose, but why shouldn’t his folks – who aren’t lawyers and don’t claim to be lawyers – be able to answer straightforward questions?

Tom Gordon has an op-ed on this topic in USA Today, and it gets to the heart of the problem: the definition of “the practice of law” has been stretched so far that people and businesses are being prosecuted for doing anything that remotely hints at being “legal.”

This isn’t the only thing that’s keeping people from getting help for their legal needs, but it’s a big factor – along with the rules prohibiting fee-splitting with non-lawyers – that is keeping a lid on innovation and forcing people to choose between services that are either fully-custom or do-it-yourself.

It’s also, as I’ve pointed out before, problematic from a free speech perspective. Answering questions and giving advice is expressive activity, and the fact that bar regulators and police authorities punish it under the banner of professional regulation sounds like content-based speech regulation to me.

There is, unfortunately, little appetite among the lawyer regulators to move to a narrower definition of “the practice of law” that recognizes both the constitutional issues and the traditional functions of being an attorney. But the overreach we’ve seen here may result in change from an unlikely source: the courts. The Supreme Court has never directly addressed the tension between occupational speech regulation and the first amendment; a number of cases winding through the federal courts right now may provide that opportunity – and spell big changes for the Bars.

Notes:

  1. The court documents aren’t readily available online, so I can’t tell to what extent the NYAG’s complaints have to do with UPL versus deceptive advertising, but according to the AG’s press release, both seem to be at play.

$5 Consults and the Unauthorized Practice of Law

Keith Lee has an excellent post breaking down the “legal consultations” offered through Fiverr, a  website that offers all sorts of services, provided by marketplace sellers, for a flat five dollars apiece. 1

Anyway, Keith identifies a number of problematics with Fiverr’s “legal consultations,” for both lawyers, potential clients, and Fiverr itself. You should read Keith’s post – he does some excellent detective work into what are some obviously false-and-deceptive offerings – but as some of the conclusions he comes to are right in the wheelhouse of my work, I feel compelled to comment on them.

Unauthorized Practice of Law

There’s no question that the people pretending to be lawyers on Fiverr could get in trouble for the unauthorized practice of law or false advertising – there’s no escape hatch for “holding out” as a lawyer when you aren’t one.

But what about people offering “legal consultations” without pretending to be lawyers?  There’s a good argument (albeit one not likely to be accepted by any attorney regulators and , except at the point of a court order) that such offerings aren’t “the practice of law.”

Americans have a first amendment right to express themselves on all manner of topics – including legal topics – and to do so for money. To the extent the state is going to regulate that expression, particularly by monopolizing the field to state licensees, it’s got to have a good reason. 2 It’s not hard to see how the core functions of being a lawyer fall under the Bar’s regulatory umbrella – that’s the basis of the long-standing regulation of the profession, and there’s little question that the state has an interest in governing how people can represent others, appear before tribunals, and call themselves “lawyers.” But people who are clearly non-lawyers offering consultations on things related to the law? It’s a stretch for the Bar to show it’s got a substantial and legitimate interest in monopolizing that kind of activity.

If you’re reading this blog, you’re probably a lawyer, and that last sentence likely sounds very weird. But try to think about it objectively – what’s the problem with admittedly non-lawyers offering advice on, say, how to fill out a name change form? 3

“Expert” Advice

Keith notes that some of those offering advice on Fiverr proclaim themselves “experts” and that this runs afoul of the Bar advertising regulations.

This certainly isn’t the case for non-lawyers – who aren’t subject to the Bar advertising rules – but frankly, it’s not even true with respect to lawyers. Lawyers can’t advertise that they are certified as specialists or experts. Just saying they “specialize” in an area, or have “expertise” in another? That’s just a straightforward statement (or at worst, plain ol’ puffery – kind of like saying you’ve got the “world’s best cup of coffee“).  Not that the bars will be the first to acknowledge this distinction – although courts (federal) are beginning to remind them.

Fiverr’s Liability

God, I real feel like I’m picking on Keith now, for what was a really good post, and some great detective work to boot. There’s no question there’s some shady business going on via Fiverr. But I’ve gotta press on to the big issue: what’s Fiverr’s responsibility for all this?

Keith concludes that Fiverr can’t take advantage of the protection offered by 47 USC 230(c)(1) – the “law that makes the internet go” – because it profits from each of the $5 micro-transactions.

That’s certainly wrong; if profit were an out from the application of CDA 230, Google – as well as a whole lot of other online companies – would be in a world of hurt. 4 The issue isn’t profiting; it’s whether the website materially contributed to the creation of the content.

This “create or develop” issue has been heavily litigated (see Hill v. Stubhub for a good discussion), and the only argument likely to get traction here would be that the creation of a “Legal Consultation” category is effectively inviting the unlicensed practice of law.

However, as consultations can – and surely are – provided in this category in ways that fully comply with local regulations on the practice of law (and because Fiverr runs an international business, and because there is a legitimate question as to whether most $5 “legal consultations” should even be considered “the practice of law”), it’s hard to imagine a court finding that Fiverr loses CDA 230 immunity simply because some assholes pretend to be lawyers when offering this service.

There’s also the instructive and coincidental example of Amazon, which has just concluded a sting operation and filed lawsuits against some 1,000  Fiverr “merchants” for allegedly offering to write bogus online reviews. Notably, Amazon hasn’t sued Fiverr – and it’s not just because Fiverr is saying the right things about how it tries to root this kind of behavior out of its system: it’s because Amazon’s lawyers know that CDA 230 stops such a suit dead in its tracks.

Fee-Splitting

One more thing: if you’re an attorney, and you’re thinking about partaking of some of that sweet Fiverr goodness, one thing to consider is the fee-splitting angle. Fiverr is splitting your fees with you, taking a buck out of each five-spot you earn with your intrepid legal advice.

Now, my take is that this should be a non-issue. Fee-splitting prohibitions are designed to prevent interference with an attorney’s independent professional judgment. Like if your doctor friend refers you a big brain injury case for a 20% of the fee, suddenly feels the weight  of college tuition bills, and calls you saying “it would be great, just great, if that case could settle – quickly!” That kind of pressure isn’t an issue with Fiverr; they care about as much about the outcome and timing of your consult as your credit card processor does (and a credit card processor’s fee split has the bar’s sanction, although I’ll grant that it took a lot of agonizing and hand-wringing to get there).

But I can’t imagine a lot of lawyers wanting to test that for five four bucks.

Notes:

  1. I’ve actually used Fiverr in the past, for some graphic design and data entry tasks, and the results were uniformly piss-poor. But what do you expect for five bucks, amirite?
  2. And technically, a regulation that can survive at least intermediate scrutiny.
  3. And even if you think it IS a problem, limiting this activity to only licensed lawyers seems a highly imperfect way of solving it. I could start giving advice on California or Washington estate planning tomorrow and I would be squarely within the law – despite the fact that I am spectacularly unqualified to opine on such matters.
  4. Google profits from each click on an AdWords listing; such listings are often alleged to run afoul of a wide variety of laws.

“Tastefulness” Regulation by Proxy

Sometimes I feel like I pick on Florida, but the Sunshine State just continues to offer up an unending stream of lawyer advertising regulation problems. This week’s entrant? The Jacksonville firm of Johns & Von Roenn‘s ill-timed ad directed at the families of sailors lost on the El Faro, the freighter that went missing off Florida in Hurricane Joaquin (“ill-timed” because the ad apparently ran the same day the Coast Guard announced it was calling off the search for survivors).

The Bar wasted no time opening an investigation into whether the lawyers complied with Florida’s review-and-approval process for lawyer ads. And two former Bar presidents denounced the ad, stating:

Regardless of whether this ad violates the Advertising Rules of The Florida Bar, it is offensive to the public and to the overwhelming majority of lawyers. It is an embarrassment to our profession that a lawyer would attempt to profit from a tragedy such as this.

Look, it’s not hard to see the potential for offensiveness here. But the Bar can’t regulate attorney advertising for tastefulness – that battle was decisively lost nearly 40 years ago, in Bates v. Arizona. Yet they continue to fight it, with statements like this and tastefulness regulation-by-proxy through the advertising review commission.

I understand the impulse to want to protect the profession from the money-grubbing, mercenary image that our advertising too often projects. But it’s not just the fact that the law is crystal-clear here. There’s also the fact that, in our rush to burnish our professional image, we’re neglecting the real interests of potential clients.

Let’s dispense with the pearl-clutching and get to the truth:  most lawyers, like most doctors and dentists, profit off of human misery. We do so because we offer skills and services that, hopefully, help people navigate through all manner of darkness to a better outcome than they would have reached without our help.

So are we, out of narcissistic self-interest, going to regulate away the right of those people, those potential clients, to get information about their legal rights? Attorney Chris Johns, who ran the offending ad, puts it well:

I can guarantee you that TOTE [the company that owned El Faro] and their executives and their team of attorneys met prior to giving their one-sided, unilateral news conferences.  I certainly believe the family members of the crew should have the same benefit of legal counsel and the same benefit of experience as TOTE has.

Well, yeah. They should. And while mass advertising may not be the highest-and-best way to choose counsel, it remains the primary way that the public begins the process of getting informed about their legal rights.

It’s fine for attorneys to take Johns & Von Roenns to task; shame and opprobrium from fellow members of the bar is probably the most effective (and the only legally-sound) way to regulate tastefulness in advertising. The Bar sure as hell shouldn’t be doing it, either directly or through the technicality of the advertising review board (which is itself an institution long-overdue to be consigned to the dustbin of history).

But even then, if you’re a lawyer who finds this kind of advertising offensive, ask the question: is our professional image more important than the interests of the public that needs our services?

Free Advice Gets Big Win

John Rosemond is North Carolina-licensed psychologist who publishes a parenting column that runs in many newspapers nationwide. In the best tradition of “Dear Abby,” he answers specific inquiries from readers, offering up psychological advice (often with a side of “get-your-shit-together-and-take-some-freaking-accountability,” which I appreciate).

Old Fayette County Courthouse, Lexington KY
Old Fayette County Courthouse, Lexington KY

One of the papers in which his column runs is the Lexington Herald-Ledger. Lexington is a fine town, in a particularly beautiful part of the country. But besides being the epicenter of horse-dom, college basketball, and sweet, sweet, bourbon, Lexington is also right down the road from Frankfort, home to the uptight regulators of the Bluegrass State.

Should you visit Frankfort, I’d recommend skipping the state capitol and heading straight for the “Hardhat Tour” of the Buffalo Trace distillery. You’ll have a far friendlier and productive afternoon.

Anyhow, as occupational regulators everywhere are wont to do, the Kentucky Board of Examiners of Psychology couldn’t let an opportunity to expand their regulatory mandate go to waste. So they had the Kentucky attorney general send Rosemond a letter informing him that he was violating Kentucky law by practicing psychology and holding himself out as a psychologist.

For giving advice in response to a specific inquiry, in a nationally-syndicated newspaper column, and for describing himself as a “psychologist.”

That’s a pretty nifty grab of the monopoly to provide psychological advice. But attorneys probably recognize it – it’s not that different than the approach many Bar regulators take when figuring out what the “practice of law” constitutes.

The good news is that a federal court in Kentucky has smacked the Board, finding that its expansive interpretation of “practicing psychology” violated Rosemond’s First Amendment rights (court order; pdf).

For many, this will seem an obvious outcome – how on earth can a nationally syndicated newspaper column be “the practice of psychology?” But when it comes to the tension between occupational regulation and the First Amendment, the amount of guidance is thin. And into that interpretative void, regulatory excesses will spill.

But now we have this decision, which promises to shed new light on the constitutional limits of Bar regulators’ ability to clear the field of unlicensed legal help and advice. 1

“Professional Speech”

At the core of attorney regulation is governing the actions – and in many cases, the speech – of those professionals licensed within a state. And the Rosemond case notes that state licensing authorities have broad power to establish standards and regulate practitioners to protect the public.

However, this power isn’t unlimited when it comes to speech regulation. Because Rosemond wasn’t licensed by the Kentucky authorities, there wasn’t a need for the court to explore this question in depth. However, as we saw earlier this year in the “Docs v. Glocks” case, the 11th Circuit determined that such regulation must meet the same “intermediate scrutiny” standard applicable to commercial speech.

Unregulated Advice?

But what happens when the regulators attempt to extend their sphere of control beyond those who they license? When regulations are extended to monopolize work for the licensees, or interfere with fundamental rights?  The Rosemond decision cites to Lowe v. S.E.C., in which the Supreme Court found that such activity is speech regulation, unlikely to survive the strict scrutiny to which it must be subjected:

Pursuant to this doctrine, the government is permitted to regulate speech in limited circumstances so as to protect the individual receiving advice— the client. As articulated by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its virtues.

Thus, while professional speech – the conversation between a professional and his or her clients – may (to a point) be regulated, speech outside the confines of that relationship may only be regulated in those narrow circumstances where government speech regulation meets strict scrutiny.

Free to Opine and Help

One key implication of this case – and something I’ve long pounded on – is that  the definition of the “unlicensed practice of law” doesn’t have the broad scope some lawyers and bar regulators believe that it does. It can’t sweep in any-and-all advice and commentary that may be “legal” in nature. Unless there is an attorney-client relationship, the state doesn’t get to butt its head in and regulate.

Paid Legal Advice from Non-Lawyers?

One thing this decision doesn’t quite close out is the question of paid advice: those who, while not “holding out” as attorneys, provide paid services relating to legal proceedings. Think independent paralegals, the more aggressive offerings of online forms companies, and those folks who provide low-cost help with straightforward bureaucratic processes like name changes (and who are often prosecuted for the unlicensed practice of law).

Clearly, there’s got to be a public protection rationale for regulating any of these activities. And the bar’s answer so far – “it looks legal, so it’s got to be provided by a licensed lawyer” – isn’t likely to pass muster. However, more definition may be on the horizon, as courts bring greater definition to the acceptable bounds of professional licensing (besides this case & “Docs v. Glocks,” 2015 alone has also seen the North Carolina Dental Board case and the online vet case, which is being appealed to the Supreme Court).

Notes:

  1. There is also a “holding out” issue in the decision, but I’m not as interested in it, as the Bars seem to have little issue with attorneys from other jurisdiction describing themselves as attorneys – so long as they aren’t also soliciting business.

Federal Judge Frees Up Two More Words for Lawyer Marketing

FINALLY – a federal court has ruled on a particular bugaboo of mine: the completely-asinine restriction that many states have on lawyers using the verboten terms “expertise” and “specialty.”

In finding that’s Florida’s rule violates the First Amendment, Federal District Court Robert Hinkle noted:

It should be noted, too, that the Bar’s approach is unlikely to solve the problem it posits. The Bar readily allows a lawyer to assert that the lawyer handles only cases of a specific kind. So a lawyer can say personal-injury cases are all the lawyer handles, or that personal-injury cases are the lawyer’s business. The Bar apparently believes that a potential client will attribute a different meaning to these assertions than to the assertion that a lawyer specializes or has expertise in personal-injury cases. But the Bar has offered no empirical or even anecdotal support for the supposition. When First Amendment rights are at stake, such an unsupported (and indeed unintuitive) supposition will not do.

Bravo. And big kudos to the attorneys at Searcy Denney Scarola Barnhart & Shipley for taking this one on. While it’s understandable that not every attorney wants to be the test case for the constitutionality of their state’s ad rules, it’s great to see a law firm stand up for the rights of lawyers and the public alike.