Death Knell for UPL?

It’s FINALLY happening – a credible lawsuit taking on the lawyers’ monopoly on providing legal advice.

I’ve long railed on the fundamental disconnect between the First Amendment’s expansive free speech guarantees and the fact that every state in the union will throw you in prison if you so much as tell someone how to fill out a legal form.

It’s an indefensible state of affairs that has persisted for far too long. Yes, there are plenty of uses for lawyers, and even some scenarios in which giving lawyers a monopoly to provide services is best for all concerned.

But a monopoly on providing “legal advice?” That doesn’t cut it.

I’ll do a longer post about why the defenses of this status quo are wholly inadequate, but for now I’m just going to recognize the excellence of the folks at UpSolve — a nonprofit that helps people defend against debt collection lawsuits — in bringing this First Amendment lawsuit against the state of New York.

In their complaint UpSolve sensibly brings attention to the fact that their volunteers are well-trained, advise only in narrow areas, and do so for free. Those factors all weigh against any argument that New York’s legal monopoly is necessary in this particular case. But “professional speech” caselaw — maybe the most neglected area of First Amendment law — has been blooming ever since the Supreme Court’s 2018 decision in NIFLA v. Becerra. Some courts are now even outright applying strict scrutiny to regulation of professional speech (see here, and here, and here). So please forgive me for hoping that UpSolve’s lawsuit may in fact be the start of something very big.

Professional Speech Regulation, or a Story about a Man and a Horse

Back in 2015, I wrote about Ronald Hines, a Texas veterinarian who was sanctioned for providing veterinary advice without a license. Hines’ punishment was upheld largely because the Fifth Circuit determined that the a key factor in the state’s definition of “veterinary medicine” was the physical inspection of the animal in question — and Hines was not doing such inspections. This physical inspection requirement was, according to the court, regulation of conduct, and thus did not impinge upon Hines’ First Amendment rights.

This was . . . not a great decision. If the regulation of conduct prevents Hines from engaging in speech, how is it NOT a speech regulation?

Well, the wheels of justice can grind excruciatingly slowly, but they do grind. With the U.S. Supreme Court’s 2018 decision in NIFLA v. Becerra offering fresh light on the acceptable bounds of occupational speech regulation, Hines pressed his First Amendment claims anew. And in 2020, the Fifth Circuit reversed itself, holding that “Hines’ First Amendment claims may be entitled to greater judicial scrutiny than [the earlier decision] allowed,” and remanded the case to the trial court to determine whether the “inspection of the animal” requirement for veterinary advice is regulation of speech or conduct.

Earlier this month, Judge Fernando Rodriguez of the Southern District of Texas ruled, finding in line with the reasoning above: if a statute conditions a right to speak on engaging (or not engaging) in a particular form of conduct, that’s speech regulation. And it’s subject to strict scrutiny.

Those who would maintain a broad lawyers’ monopoly on legal advice should note this about Judge Rodriguez’ decision:

“[Hines] alleges that the Physical Examination Requirement, as applied to him, has wholly restricted him from interacting with pet owners, even when his communications do not consist of diagnosing, treating, or prescribing medication to animals. He cannot call or e-mail an animal owner, even if only to console pet owners or disseminate general information, unless he first physically examines the animal. In short, the overwhelming majority of what Hines sought to do, but which the Defendants prohibited him from doing unless he satisfied the Physical Examination Requirement, constituted speech and in no manner could be characterized as conduct.”

As with medical diagnoses and prescriptions, it’s possible that some tasks lawyers engage in — like representing clients before tribunals, or signing certain documents — might be determined to be conduct, and thus subject to greater regulation. But general “legal advice?” It’s hard to see how or why that should be treated differently than the services Ronald Hines was trying to sell to pet owners — services that can now only be regulated by the state of Texas upon a showing that such regulation satisfies strict scrutiny.

Streamlining “Admission on Motion”

So I was just admitted to the Arizona Bar.

Before you break out the celebratory mezcal and tacos, let me note the decidedly low-key meaning of this milestone: I’m already licensed in California and Washington, and I don’t need an Arizona Bar license for my in-house job.

But having moved to Tucson earlier this year, I figured I should get involved in the local legal community, and have the option of being able to do local pro bono and other in-state legal work. So I applied for a law license via “admission on motion.” That’s a form of admission available to attorneys who are licensed in another state and have been in active practice for at least 3 of the last 5 years.

It’s supposed to be a fast-track to a license for experienced attorneys, so you’d think that “admission on motion” would be simple, right? I’d just fill out a basic application form with the particulars of my admissions in other states, the Arizona Bar would then look up my California and Washington records online, they’d confirm that I’d been licensed long enough and hadn’t been disciplined, and grant me admission. It would take a day or so.

LOL – right.

In actuality, just completing the application form took me over 25 hours. It’s an unwieldy monster, requiring all sorts of ancillary documentation. For example: Arizona requires several official forms showing that I’d been admitted in another state, and that I am currently in good standing in that state. Different states have different names for these things, so I had to spend time corresponding with the California & Washington bars to ensure I was getting the right documents. Then I had to pay them to send “official” versions to me. All of this rigamarole, notwithstanding the fact that the AZ Bar could go to and and confirm these matters in seconds. Seems like that would be easier than reviewing the documents I sent them, right? I can’t imagine it’s because they don’t trust the other bars; I think it’s just the lawyerly proclivity for paperwork.

As it was, it took 4 months from when I submitted the application to when I was officially admitted to the Bar. I’d been warned it would take 9 months, so . . . good?

But why was all this runaround necessary? 

Again, it’s merely an annoyance for me; I’m practicing exclusively in-house, for an out-of-state company.

But what if I were were, say, a worker’s right attorney who was the trailing spouse of a pilot reassigned to the Davis–Monthan Air Force Base in Tucson? Or a family lawyer following my partner who just got a sweet job at the University of Arizona?

Cue up the 4+ month herky-jerk of the Arizona admission on motion process. And all that time, how do I focus on serving Arizonans and making a living at my chosen profession?  

So here’s a modest suggestion: flip the application presumption.

The current system starts with a presumption that the applicant is unworthy. A massive amount of time and paperwork is required to overcome this presumption. But anyone applying for AOM has already met the bar in at least one other state, and they are actively practicing. Why all of that paperwork to prove out what’s already known? It offers no benefit to the public; it’s just a box-checking exercise.

So change the presumption to one of worthiness. The AZ Bar can easily confirm license status and disciplinary history for any applicant. If an attorney meets the basic criteria (licensed, in good standing, active practice in 3 of the last 5 years) and has a clean disciplinary record, just give them an Arizona license. Save everything else – the notarized documents, the questionnaires, the exhaustive reference checks, the character and fitness evaluation, etc. — for applicants with spotty records.

As the vast majority of attorneys don’t have disciplinary records (less than one-quarter of one percent of attorneys are disciplined in any given year), almost all applicants would end up being admitted through this streamlined process. This would save everyone a lot of time and effort and help contribute to Arizonans getting legal help. And the Bar could still charge its licensing fee.

(Though I do feel a little bad for singling out Arizona. Every state that offers admission on motion has a process roughly as bad as this one, and the people at the Arizona Bar were nothing but pleasant and helpful throughout the process. So consider this as general advice for ALL states looking to improve license portability — and the ability of the public to get legal help.)

“Strongly Regulate,” Social Media Edition

So earlier this week the President of the United States took to Twitter to baselessly accuse a private citizen of murder (as one does, amidst a pandemic that has claimed 100,000 American lives and throttled the economy). 

The calls for Twitter to ban/censure/otherwise punish Trump came swiftly. And in true Twitter fashion, the company did . . . something entirely different. It tentatively waded into ANOTHER Trump Twitter Shitshow — this one involving the Umber Menace inveigling about the perils of voting by mail. Twitter decided THIS was the fight it was going to take, appending a little linked tooltip disclaimer to the offending tweets: 

This is a form of content moderation, and obviously far short of a takedown or account suspension. And as “flags for offensive content” go, this is pretty mild. Hell, squint at it just a little and it looks like an endorsement of Trump’s claim.

But Trump, naturally, took offense: 

“Strongly regulate or close them down?” What even IS this noise? 

At one time, Republicans cared about the First Amendment. They noted, rightly, that corporations have free speech rights. And you know what? If social media platforms were actually silencing conservative voices, REAL conservatives would say “So what? The government’s got no role to play there.”

Instead, we’ve now got Trump doing his snowflake-swagger routine, echoing the bad faith nonsense that Republican Senators have been spewing for months:

I’ve written at length about why this argument is abject nonsense, and why threats to change CDA 230 aren’t going to achieve the ends Republicans like Rubio purport to be seeking. But here we are — it looks to be a long summer of escalating stupidity.

No, CDA 230(c)(2) Isn’t The Only Thing Keeping Conservatives Off YouTube

Over the last year or so, there’s been a surge of claims that Google, Twitter, YouTube, etc. are “biased against conservatives.” 

The starting point of this bad faith argument is a presumption that sites should be “neutral” about their content moderation decisions — decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.

More about this “neutrality” nonsense in a later post, but let’s move on with how this performative mewling works. 

So after setting up the strawman standard of “neutrality,” these self-styled “conservatives” turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible. 

These anecdotes are, of course, offered as evidence that sites haven’t been “neutral.”

And it’s not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 — the law that makes the internet go.

Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham — lawyers all, who surely know better — bitch and moan about CDA 230’s content moderation immunity. If only sites didn’t have this freebie, they say — well, then, we’d see some neutrality and fair treatment, yessiree.  

This is total bullshit. 

Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But that’s only important to the extent it keeps people from treating “community guidelines” and “acceptable use policies” as matters of contract that can be sued over. 

Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment. 

Really, I can’t stress this enough: 


Eliminating content moderation protections from CDA 230 doesn’t change this fact. 

It can’t change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.

So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about “big tech,” misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything. 

Which, by the way, would be awful. Any site that just published virtually everything users posted (that’s the true “First Amendment standard”) would be an unusable hellhole. No site is going to do that — and, again . . .


Further Thoughts on Professional Speech Regulation

OK, so in my post on the Visaline case, I explored the bizarre idea that regulators can keep people from speaking on certain topics, just by requiring a license to talk about those things — and that the decision to require such a license-to-speak can be supported by little more than caprice.

Hopefully other courts will follow the Fifth Circuit and swiftly eliminate this glitch. For Visaline — with its blunt invocation of the Supreme Court’s 2018 decision in NIFLA v. Becerra — reinforces the notion that real limits exist on the ability of the state to regulate the speech of licensed professionals. And this is so important because a distressingly large number of lawyers and judges — who really should know better — seem to get First Amendment amnesia when it comes to this area.

NIFLA v. Becerra was the Supreme Court’s first-ever decision directly addressing the concept of professional speech regulation writ large. And in that decision, the Court summarized the state of play:

The Court has afforded less protection for professional speech in two circumstances— where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech” . . . and where States regulate professional conduct that incidentally involves speech.[ref]In fairness, I think what the court is saying here is that these are the two situations where it has applied the lowest protection for professional speech; regulation in these areas need only meet the rational basis test. It has also applied lower protection — the intermediate scrutiny test — to regulation of all commercial speech other than basic disclosures.[/ref]

The NIFLA opinion goes on to note that the Supreme Court has had several occasions to reinforce that the full protection of the First Amendment applies to most professional speech:

“The Court has applied strict scrutiny to content-based laws regulating the noncommercial speech of lawyers, professional fundraisers, and organizations providing specialized advice on international law. And it has stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Sorrell v. IMS Health Inc., 564 U.S. 552, 566.” (internal cites omitted)

And lest we forget, when professionals speak in a non-professional context — even when talking about their licensed profession — THAT speech is as fully First Amendment-protected as it would be if uttered by a non-licensed citizen.

There likely ARE other areas of professional speech where regulation can meet a lesser standard — or can simply clear the bar of strict scrutiny. There’s a lot more work for the courts to do before we arrive at an appropriately narrowed professional speech doctrine.

Is the Ice Breaking for Professional Speech?

It’s been all COVID-19 for the last couple of months, so I’m taking a break to take a look at a new professional speech case that I missed when it dropped in late February.

The case is Vizaline v. Tracy, out of the Fifth Circuit. And the thing I love about this case is that it takes on, directly, the fundamental issue I have with so many of the earlier professional speech cases: the idea that the gating function of professional licensing itself is somehow magically immune from First Amendment issues.  

Here’s what I mean. There’s little question that when it comes to the speech of professionals, the First Amendment applies. For example, there’s a well-established body of law relating to professional marketing speech, and an (admittedly underdeveloped) body of law when it comes to the speech professionals engage in with their clients. But at least the parameters are understood — the First Amendment applies, and we’re just negotiating about which standard of review the state has to live up to.

But something quirky happens when it comes to entry to the professions. In these cases, courts routinely handwave away the First Amendment issue, despite the fact that entry restrictions are sweeping: they keep the vast majority of the public from engaging in certain types of speech.

Weird, right?


So, Vizaline. This company converts existing metes-and-bounds descriptions of real property — the raw data you’d find if you looked up property records at the county Recorder’s office — into simple maps. It sells these maps to community banks who would otherwise have to obtain surveys (from licensed surveyors, of course) on less-expensive properties used as collateral for mortgages.

It isn’t like Vizaline is passing itself off as something it isn’t. Vizaline does simple maps, and discloses that what they offer is “not a Legal Survey or intended to replace a Legal Survey.”

So naturally the Mississippi Board of Licensure for Professional Engineers and Surveyors got the state attorney general to sue Vizaline on its behalf. 

What for? “Surveying without a license,” that’s what for. Which honestly . . . doesn’t sound that awful, but which turns out to be both a civil and criminal offense in the Magnolia State. 

The Case

Represented by The Institute for Justice (who, along with the R Street Institute, are one of the only groups focused on the excesses of professional licensure), Vizaline contended that its maps are speech, and as such are entitled to First Amendment protection.

The District Court wasn’t having it. That court found no First Amendment issue, on the remarkable theory that the requirement of a license only “incidentally infringes” on Vizaline’s speech because the licensing requirement merely determines who can speak. [ed. note: LOL]

On appeal, the Fifth Circuit went straight to the Supreme Court’s 2018 NIFLA v. Becerra decision, noting that case had eviscerated the concept that the gatekeeping function of licensing acts like some sort of First Amendment get-out-of-jail-free card:

The district court’s holding that occupational-licensing provisions “do not trigger First Amendment scrutiny” is contrary to the Supreme Court’s decision in NIFLA. NIFLA makes clear that occupational-licensing provisions are entitled to no special exception from otherwise-applicable First Amendment protections.

Bam. For as the Supreme Court had noted in NIFLA: 

“All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.”

The Fifth Circuit panel described NIFLA as essentially eliminating the “professional speech doctrine” — described in this case as a doctrine excepting professional speech from ANY First Amendment scrutiny — and remanded to the District Court to determine whether Mississippi’s licensing requirements implicate speech or non-expressive professional conduct.

While the remand is understandable, it leaves one a little wanting, as the licensing requirements at issue seem to plainly implicate expressive conduct. But overall, Vizaline points in a hopeful direction, one where the “professional speech doctrine” takes on a new understanding as protecting both the First Amendment rights of professionals and those who approach the murky bounds of licensed professional activity. 

More Speech Rules from the ABA?

Lawyers. Hardly poor cobblers are we; as a profession that deals in the arcana of regulation we seem to delight in larding ever more regulation upon ourselves. The attitude of our profession might be summarized as “if a little regulation is good, then surely more regulation is even better!”

So if diversity — and the encouragement thereof — is a good thing, then the reaction of many in the profession is: let’s have a regulation that requires that. Or, at least, that requires lawyers to do and say things that are supportive of diversity. That’s the core of a proposed new ABA Model Rule 8.5.

It should come as little surprise that I’m skeptical of proposals that add to the weighty-and-crufty mass of rules that govern the practice of law. This is particularly true when it comes to rules that limit or compel professional speech, as this rule would:

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession. 

What does “undertake affirmative steps” mean here? It may mean that expression deemed antagonistic to these goals violates the rule. It may also mean that the failure to engage in expression sufficiently observant of these goals violates the rule. Either way, in making orthodox a particular point of view the proposed Rule represents unconstitutional viewpoint discrimination.

Many lawyers will, of course, make some combination of the argument that “diversity is important, and no one is going to interpret the rules this way anyway.” But the first part of that argument is completely irrelevant, while the second part is provably false. We need look no further than the advertising rules to see how far lawyers and the Bars are willing to stretch the regulatory language — and the chilling effect this has on the speech of lawyers and the ability of audiences to hear that speech.

We need fewer rules governing the practice of law, not more. And as proposals such as this continue to proliferate, we need the Supreme Court to firmly establish a professional speech doctrine making it crystal clear that a license to practice law cannot be conditioned on abandoning one’s free speech rights.

Are ALL Licensing Restrictions OK Now?

I missed this when it was issued last month, but struck by the result in the del Castillo v Philip case, challenging the application of Florida’s licensing law for dietitians to prevent the sale of diet coaching services by a non-licensee.

While the court is foreclosed from asking the obvious question (“do we really need so many god damn occupational licensing laws?”), it could have, you know, paid a little deference to the First Amendment on its way to depriving Heather Kokesch del Castillo of her right to earn an honest living.

Because maybe I’m reading this wrong, but it seems like the court is saying that ANY entry-to-the-profession licensing requirement inherently does not raise First Amendment issues — even if the profession is fundamentally centered on speech.

And even if the licensing requirement involves having a college degree and at least 6 months of relevant experience.

Look, I understand if the state wants to require a business license and the payment of a nominal fee before someone starts selling services to clients. That seems generally applicable, not speech-impacting, and relevant to prosaic matters like being able to hold businesses accountable for fraud and crappy service.

But it’s another thing entirely when those licensing requirements are extensive – and instead of merely giving the licensees the right to advertise their services as having met a state-sanctioned level of putative quality, prohibit non-licensees from providing any sort of advice and counsel in an incredibly broad area like “diet and nutrition.”

Shouldn’t the court have run this through something like intermediate scrutiny analysis – which likely would have found that the state could have achieved its desired objective through a less-speech-impacting means, such as certification?

I mean, there’s nothing keeping Florida from setting up a fancy “certified dietician” program with these educational and experience requirements. Ms. del Castillo couldn’t call herself one of those, but she would still be free to sell her services. And consumers could choose for themselves. Is there some consumer protection need here that is SO pressing we need to keep diet-interested bloggers from sharing their thoughts on a paid basis?

Here’s hoping the Supreme Court takes this case, and provides some much-needed clarity to the nascent professional speech doctrine.

[and yes, the implications for legal licensing should be obvious]

Is Real Change Finally Arriving to Lawyer Regulation?

Go read Jayne Reardon’s latest, “Re-Regulating Lawyers for the 21st Century,” which provides an excellent overview of a series of attorney regulatory changes being floated in a number of states. While the process in California seems to be attracting the most attention, developments in other states may well outpace it. I wouldn’t have thought it possible a year ago, but Arizona seems to be on the road to doing two things I’ve long called for:

These changes may seem like small potatoes next to proposals like allowing outside investment in law firms. But eliminating these rules should be a much easier proposition, and doing so could unblock a lot of potential innovation in consumer legal offerings.