More Thoughts on “The Practice of Law” (Part 2)

In Part 1, I looked at the recent 2nd Circuit decision that found that brainless document review activities, although done on legal matters, by licensed attorneys, were not “the practice of law.”

In this post, I’m going to look at another July 2015 decision – this time from the 11th Circuit – that also helps inform the contours of what, precisely, “the practice of law” actually is.

The case, handed down on July 28th, is Wollschlaeger v. Governor.  Wollschlaeger involves another form of professional speech – that of doctors – and deals with the question of whether the state can regulate doctors asking questions of patients regarding guns.

I’ll say at the outset: Wollschlaeger is a mess. It basically shoehorns constitutionality by finding an exception that swallows the rule, leaving in place a garbage piece of legislation obviously designed for no other purpose than to cow doctors away from even bringing up the subject of guns when talking with patients.

But let’s leave aside for now the question under what subjective state of mind a doctor moves from allowable to unallowable questions of patients regarding firearms ownership. My larger interest is the test the Circuit court used for acceptable state regulation of professional speech.

Yes, even professionals, acting in their professional capacity, have first amendment rights. And as Paul Sherman noted earlier this year, there’s precious little in the way of Supreme Court guidance on the uneasy intersection between the First Amendment and professional regulation. This is a question that should be of particular importance to lawyers, given that ours certainly consists of a higher percentage of speech-related activity than any other licensed profession.

In Wollschlaeger, the 11th Circuit took the question on headlong, finding that state regulation of professional speech – within the context of the professional’s relationship with a consumer – is subject to the same intermediate scrutiny analysis applicable to commercial speech. 1

The court noted that doctors have full first amendment rights to speak out with respect to guns, but that, when it comes to the doctor-patient relationship, the state’s interest in consumer protection means it can regulate speech subject to intermediate scrutiny.

Although I’m partial to Sherman’s argument that professional speech regulation should be subject to strict scrutiny, and while I completely disagree with the court’s conclusion that Florida’s law survives even intermediate scrutiny, the case is a good reminder that the state’s speech-regulatory authority – regardless of the standard applied – is limited to the professional-client relationship. It doesn’t apply more broadly to anything a professional might say.

For attorneys worried about answering anonymous questions online, or speaking out publicly about matters of interest, this should offer some comfort that regulation of “the practice of law” isn’t going to control their expression just because they happen to be lawyers.

Notes:

  1. Which is not to say that such communications ARE commercial speech.

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