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.

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