First Amendment

Does Licensing Lawyers Violate the First Amendment?

Like Chief Justice John Roberts, I don’t put a lot of stock in law review articles. But every now and then, one comes along – usually written by an honest-to-god practicing lawyer, and not a full-time academic – that’s worthy of notice. Case in point? Paul Sherman’s March 15 Commentary in the Harvard Law Review, “Occupational Speech and the First Amendment.”

I’m still digesting the argument, but at first blush it powerfully extends the case, on First Amendment grounds, for a substantial drawing-in of state regulatory power over the practice of law.

How so? Consider:

  • The core functions of the practice of law involve speech, much of it in the form of advocacy and advice.
  • Requiring an occupational license to carry out these functions is a content-based speech restriction.
  • Content-based speech restrictions must survive strict scrutiny in order to be found constitutional. 1
  • Outside of certain truly client-protective measures and limits on speech in government-created forums, the broad speech restrictions inherent in legal licensing would not survive strict scrutiny.

The result? “The practice of law” would be cut back largely to courtroom representation and advocacy.

It’s a really interesting point. As I’ve long maintained, nobody is “practicing law” when they opine generally on the law or public policy, and the bars have no business trying to regulate them for doing so.

However, I’ve always rather uncritically accepted the notion that there is something fundamentally different about offering advice to a client for a fee. That doing so means you’ve crossed a line where regulation is appropriate.

But I think I’ve been wrong about that.

Why? Because Sherman notes something that is critically important to all media lawyers. Something I tell lawyers when they get pissed off about Avvo’s publishing profiles of them:

The fact that otherwise-protected speech is “sold” doesn’t make it any less worthy of constitutional protection.

This is the principle that keeps the government from censoring the media, despite the fact that people used to actually pay for newspapers. It’s why rights of publicity can’t stop “unauthorized biographies.” It’s the very clear, often-repeated-by-the-Supreme-Court mantra that economic interest alone is not sufficient to convert free speech into commercial speech (to say nothing of speech wholly devoid of First Amendment protection).

So how can the states prevent – oftentimes on pain of criminal sanctions – nonlawyers from offering paid advice on things like filling out forms, complying with laws, negotiating agreements, and interacting with the government?

The answer seems to be that they can’t.

Notes:

  1. That is, unless they fall into one of a handful of exceptions not relevant here: defamation, child pornography, true threats, etc).

5 thoughts on “Does Licensing Lawyers Violate the First Amendment?”

  1. Hello,

    A couple days ago I was researching what types of regulations existed for lawyers in the colonies. I have been contemplating a lawsuit against my state’s UPL statute and every few weeks I work a little more on a brief for my lawsuit (I’m not a lawyer, but have spent a three-figure sum of hours researching free speech case law for this and a different lawsuit I’m contemplating). I had previously read several law review articles about UPL explaining, basically, that at the turn of the 19th century, what laws existed only extended to appearances before a court on another’s behalf, not to speech outside the courtroom, and that it wasn’t until the early 20th century that UPL laws began to be passed by states regulating law-related speech outside the courtroom. This weekend, I was researching what the laws actually said, since Stevens excepts from First Amendment protection certain speech long known to the bar as not covered by the First Amendment. That way, I would know have a good idea of what the bar would raise as a defense. Anyways, I bookmarked this page a while ago and while researching the colonial legal regulations, the bookmark caught my eye, so I decided to revisit this page.

    The bad news: Licensing lawyers is almost certainly a category of speech outside the First Amendment, based on Stevens and in contrast to your footnote on this post. Of course, regulations of speech outside the protection of the First Amendment are still subject to intermediate scrutiny.

    The good news: This category of speech would only pertain to pleading on behalf of another person before a court, so it shouldn’t apply to legal speech, generally, outside the courtroom.

    To provide a brief overview, there were very few lawyers in the colonies before the mid-18th century. In the 17th century, most colonies enacted laws that either made pleading for compensation (many regulations required anyone pleading before a court to swear an oath that they were not being compensated for their appearance) or sought to make it financially difficult for lawyers to earn a living by permitting only small legal fees. For example, the first regulation in Virginia was passed in 1642 and titled “For the better Regulating Attorneys, and the Great Fees exacted by them.” It required attorneys to obtain a special license, valid in only one court, and limited legal fees to 20 pounds of tobacco (the author of the article calls this a “ridiculously small fee … in such a prosperous colony”). In 1645, Virginia outlawed “mercenary attorneys” (ie. those practicing for a fee) except those involved in ongoing cases. The laws in some colonies frequently went back and forth between outright prohibition vs licensing or restrictions on fees. However, it seems that many incompetent individuals were pleading causes on behalf of another person. Generally, among the colonies one could plead personally or through a friend, acquaintance, or [when allowed] an attorney. By the mid-eighteenth century, many courts would require attorneys to demonstrate that they were learned in the law to be admitted to the bar. One of the first acts of Congress, the Judiciary Act of 1789, provided in Section 35 “[t]hat in all courts of the United States, the parties may plead and manage their own causes personally or by assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein.” So the bottom line is that requiring lawyers to be admitted to the bar in order to plead on someone else’s behalf is almost certainly a category of speech outside the First Amendment, based on Stevens. But if you go through the four law review articles listed below, practically all the regulations mentioned deal only with pleading before a court on behalf of another.

    Anton-Hermann Chroust, Legal Profession in Colonial America, 33 Notre Dame L. Rev. 51 (1957). First of 3-part series. Intro/overview of situation among all colonies, then discusses in detail MA, CT, NH/ME, RI.

    Anton-Hermann Chroust, Legal Profession in Colonial America, 33 Notre Dame L. Rev. 350 (1958). Discusses NY, NJ, PA, DE, MD.

    Anton-Hermann Chroust, Legal Profession in Colonial America, 34 Notre Dame L. Rev. 44 (1958). Discusses VA, NC, SC, GA.

    Anton-Hermann Chroust, American Legal Profession: Its Agony and Ecstasy (1776-1840), 46 Notre Dame L. Rev. 487 (1971).

    1. You may be taking my provocative blog post title a little too literally. My point isn’t that the state can’t license (that’s not a speech restriction), or limit certain types of speech – like courtroom advocacy – to licensed lawyers (that’s a “traditionally recognized” limitation on occupational speech).

      Rather, my point is that broad UPL restrictions that would prevent non-lawyers from offering – or even selling – legal advice and counseling would likely offend the First Amendment.

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