As I’ve often noted, I take a dim view of ethics opinions that don’t consider the First Amendment implications when dealing with lawyer advertising. I mean, it’s a pretty important thing, the First Amendment, right? And as the First Amendment drives the boundaries of the rules, it . . . seems like a big miss to not pay attention to it.
In response to my making this point during a talk earlier this week, the objection was raised that the rules are just fine; they’ve been tested in court and found to be constitutional. Case closed; ethics committees needn’t worry about anything other than considering how far the rules might be stretched to prohibit various attorney conduct.
I didn’t have the opportunity to respond to this curious argument, but given the bona fides of the attorney who made it (an eminent and smart lawyer, who shall go nameless here), I suspect this argument may have more currency than I would have thought. So, a quick little First Amendment lesson:
IT DOESN’T MATTER if the Rules have already been found to be Constitutional.
Hell, if they hadn’t been so found, they would no longer be the Rules.
In First Amendment law there are “facial” and “as-applied” challenges to rules. The former argues that a law is unconstitutional on its face; it is not possibly amenable to a constitutional interpretation. The latter – which is far more common – argues that the law has been unconstitutionally applied in a particular case.
So the fact that Bar advertising Rules may have survived previous constitutional challenges is only relevant to the extent one is interpreting similar applications of the rule. It is not remotely a clean bill of Constitutional health to all applications of the rule, and certainly not an excuse for ethics committees to turn a blind eye to First Amendment parameters when opining on speech-impacting rules.
I realize, too, that this makes the jobs of ethics committees more difficult. But given the costs to the public and the bar imposed by overreaching opinions in this area, they need to either do this work or get out of the business of issuing ethics opinions on lawyer advertising.