North Carolina – which has one of the most specific definitions of “the practice of law” going – has just won an unlicensed practice of law victory over an association that wanted to provide legal services to its members.
The outcome wasn’t a huge shock; North Carolina, like all states, prohibits non-lawyers from practicing law. As the association (whose ostensible purpose was to provide legal advice and counsel to small and mid-sized employers) is a corporation, it can’t practice law. That also means it can’t hire lawyers to provide legal services to the public. Easy win.
But in getting to this outcome, North Carolina had to overcome an objection that’s rarely seen: that the state’s UPL restrictions violate the First Amendment.
There’s a tension between professional regulation and the First Amendment, for much of “the practice of law” involves expressive acts. But while this has been heavily litigated in the professional advertising context, there’s been precious little judicial guidance where “occupational speech” regulation is concerned.
So it’s notable that this case addresses the issue, and perhaps understandable that the decision would botch the analysis so badly.
How’s that? The North Carolina case cites to a recent Fourth Circuit decision, Moore-King v. County of Chesterfield 1 for the proposition that professional regulation of speech is not subject to the First Amendment.
That’s quite obviously wrong. Even regulation of professional advertising speech is subject to First Amendment scrutiny. And there have been a number of cases recently involving regulation of doctors’ speech while treating patients – those cases have taken First Amendment coverage as a given, even as they wrestled with whether intermediate or strict scrutiny of the regulations should apply.
In fact, the Moore-King case involved a licensing requirement for fortune-tellers, and it stands for a much more limited proposition than that adopted by the District Court in North Carolina: that “generally applicable licensing provisions” don’t raise First Amendment concerns. This in no way means that all professional regulation is outside the scope of the First Amendment.
What’s more, not even all licensing requirements get a pass from First Amendment scrutiny. The Fourth Circuit in Moore-King takes pains to distinguish the County’s straightforward licensing requirements from regulations that banned the sale of fortune-telling services, and also notes that the government does not have “carte blanche” in creating these regulations.
None of which is to say that the North Carolina court reached the wrong decision – it likely did. The Bar has a generally applicable licensing scheme, and it’s hard to imagine that a wholesale challenge to the practice of licensing lawyers would ever succeed. But it’s important to recognize the limits of this occupational licensing exception, and reinforce the fact that attorneys do not check their First Amendment rights at the door as the price of being called to the Bar.
Finally, while the legality of a license requirement for attorneys may be a settled question, the same cannot be said for the contours of that legal monopoly. For it’s one thing to have a generally applicable licensing requirement before people can represent others in court, but it’s quite another to extend that requirement to any and all who would sell advice and counseling on matters that seem “legal.” Most in the legal profession take it for a given that such “legal advice” is restricted to the monopoly of lawyers, but that seems far from clear given the First Amendment issues in play. 2