Category: Occupational Speech

Earlier this month, the ABA issued advisory opinion 480, which says that attorneys cannot reveal client information even if that information is in the public record. The opinion points to Model Rule 1.6, which states:

A lawyer shall not reveal information relating to the  representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

This rule is certainly a statement of good practice. Attorneys absolutely should be guarded in how they communicate about their clients’ matters. In fact, they should err on the side of caution when it comes to talking about their clients. I’ve hired a lot of lawyers over the last 20+ years, and I can say, without exception, that I would expect that each and every one of them would ask my permission before talking publicly about ANYTHING related to the representation that I might possibly have a problem with – even if that information is in the public record.

But what an attorney should do is a completely different question than that of what an attorney is compelled to do.  The distinction between best practices and legal compulsion (a distinction lawyers should do a better job of appreciating, btw) is the critical thing to keep in mind in understanding why ABA opinion 480 is wrong.

Why? Because we attorneys don’t give up our First Amendment rights when we get licensed. And while these rights leave room for appropriate regulation of professional speech (even if the exact standard for such regulation remains undetermined), there’s little reason to believe that a blanket rule of the sort adopted by the opinion would pass Constitutional scrutiny.

In reaching its conclusion, the opinion stretches to find a way around Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), the Virginia Supreme Court case that dealt directly with a state bar arguing that its rules prevented lawyers from writing about matters of public record. To do so, the opinion states  “the Committee regards Hunter as limited to its facts.”

Well, that’s nice. But is that limiting distinction appropriate? Let’s go to the opinion in Hunter:

The VSB argues that it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession. Such concerns, however, are unsupported by the evidence. To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

The ABA opinion seems to find it distinguishing that there was no evidence to support the Virginia Bar’s opinion. That’s true – there wasn’t.  But the implication of this isn’t that Hunter is an outlier. Rather, it’s that any attempt to punish an attorney for disclosing public record information would need to be supported by evidence.

What’s more, that evidence – and the particular application of Rule 1.6 to punish  an attorney for such disclosure – would most likely need to meet the bar for strict scrutiny. As the Hunter decision notes:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.

Well, yes – this is a fundamental cornerstone of free speech law. While one can imagine scenarios where this hurdle could be met, they certainly aren’t going to be the norm.

I’m sure the drafters of Opinion 480 had their hearts in the right place, and were thinking of client protection. It’s an understandable impulse, and like I wrote at the outset, this is an area where attorneys should go far beyond what the Rules require. But we can’t turn a blind eye to the First Amendment – and read that “should” as a “must” – simply because we know what the best practice is.

I’ve written quite a bit about the regulation of professional speech (most recently here), and how this area is curiously under-developed from a First Amendment perspective. The closest thing we’ve seen to the Supreme Court addressing professional speech regulation is the 1985 case of Lowe v. SEC, and that case – like most lower court cases dealing with professional speech – has far more to do with the government’s right to require licenses than it does with how the government can restrict the speech of licensees.[ref]Although the First Amendment implications of whether to require a license have also not been adequately addressed by the courts. While laws of general applicability – like a business license requirement – are fine, laws requiring a license before engaging in expressive activity may also run afoul of the First Amendment. The Bars may have some issues here, as the giving of legal advice – an expressive activity – is limited, on pain of criminal sanction, to those possessing licenses issued by the state.[/ref]

Meantime, we’ve had Supreme Court cases addressing the First Amendment implications of everything from “crush films” to violent video games to drug-promoting messages in the schoolyard. Hell, we’ve had NINE Supreme Court cases plunging the depths of the First Amendment constraints on attorney advertising regulation.

So why so little attention to the Constitutional dimension of regulating non-advertising professional speech? Especially when some 30% of the population now works in a profession requiring a license from the government?

There ARE cases, winding their way up the appellate ladder, that may cause SCOTUS to address the question within the next few terms. But I’ve just come across this recent law review article penned by Widener Law School Dean Rodney Smolla (First Amendment scholar and author of, among other things, the two-volume resource “Law of Lawyer Advertising“) that makes the case that there should be no “professional speech doctrine.”

Rather than subject professional speech regulation to “intermediate scrutiny” analysis (the approach taken by the 11th Circuit in the infamous “Docs v. Glocks” case), such speech should be protected to the same extent as core political speech, Smolla argues. Referring to the Paul Sherman article I wrote about here, Smolla makes the case persuasively that regulation of professional speech should be subject to strict scrutiny – the same standard applied to almost all other forms of content-based speech regulation. While this is the hardest test for regulation to pass, Smolla makes an interesting observation: that in all of the traditional consumer-protection contexts upon which occupational speech regulation is defended, the strict scrutiny test is actually easily met:

No special “professional speech” doctrine is needed, however, to protect the consumers of professional services from expression by professionals that is false, misleading, criminal, tortious, or palpably unethical in some traditional sense (such as speech
covering up a conflict of interest). Application of the strict scrutiny test will already allow for such regulation.

So what’s the basis for regulation beyond these areas? Smolla continues:

What is then left over is the very thin, conclusory, and paternalistic argument that consumers who receive advice from professionals, including advice that often implicates important matters of public discourse, need the heavy hand of the state to protect them from over-reaching and abuse.

The First Amendment, however, is grounded in exactly the reverse set of assumptions. The First Amendment presumes that people are their own best judge of what to say or not say, or listen to or not listen to. Clients do not have to listen to the advice they are receiving, or even continue the relationship.

Exactly right. For as Smolla points out, classic professional speech regulations – like prohibitions on breaching attorney-client privilege or requirements that doctors obtain informed consent – don’t point to a need for a relaxed regulatory standard: they are simply evidence that meaningful regulation can survive strict scrutiny. And perhaps this way of thinking can offer a path to clearing out the excesses of less-meaningful occupational speech regulation.

So a couple of weeks ago I was at the ABA’s Third Annual UPL School in Chicago – a gathering of those bar authorities dedicated to rooting out the unauthorized practice of law. And I have to say – it was a strangely chastened bunch. The specter of North Carolina Dental Board v. FTC hung heavy in the air, and many in attendance claimed that they no longer issue advisory opinions or cease-and-desist letters. Rather, they do one of two things when they get complaints: dismiss, or file a lawsuit.

This isn’t a bad thing. Advisory opinions and C&D letters can have a toxic, chilling impact, stopping all sorts of activities that are well outside the boundaries of the legal monopoly. In fact, this is the sort of practice that got the North Carolina Dental Board into hot water – dentists using C&D letters to shut down tooth-whitening services. And it’s what we see in the more egregious examples of UPL enforcement. Being more cautious when wielding the regulatory club isn’t a bad thing, so long as regulators don’t overcompensate and abandon ALL attempts to enforce UPL.[ref]Despite my skepticism about the breadth of the legal monopoly, I’ll readily acknowledge that there are consumer-impacting UPL practices out there, among them non-lawyers pretending to be licensed and the various related forms of “notario” fraud.[/ref]

But I have to wonder: is the UPL side of the regulatory house not talking to the legal ethics side? Because the same issues exist there. North Carolina Dental stands for the proposition that Bar regulators can lose their state action antitrust immunity for anti-competitive behavior. And what’s more, this potential liability also carries through to the individual members of the Bar boards and committees that make these determinations.

Advertising ethics opinions – and advertising review boards, in those states that employ them – can have the same sort of anti-competitive impacts as UPL letters and opinions. In all such cases, potential competitors are being elbowed out or burdened. The fact that in the advertising context those competitors are primarily fellow members of the Bar doesn’t make a difference. Bar Ethics Committees – which are comprised of market participants – are issuing ethics opinion that limit competition. The do so by chilling the ability of other members of the Bar – members who may not enjoy Bar leadership positions – to offer information about legal services to the public. They may even limit non-lawyer competition with Bar lawyer referral services.

As with UPL, there are ways Bars can regulate such advertising activity without taking on antitrust risk. Doing so requires an open, transparent, and evidence-based showing that the consumer protection justifications for its restrictions outweigh the anti-competitive effects. Or at least “active supervision” by actual state government actors. But that’s not the typical closed ethics opinion approach, which we continue to see even now two years after the decision in North Carolina Dental. A handful of states – like Virginia, North Carolina, Oregon, and Washington – at least seem to be aware of this concern. But it’s odd that the cautious approach on the UPL front has yet to be matched by most regulators on the legal ethics side.