Socially Awkward

Look, I’m fine with straightforward health and safety labeling. I’m even OK with disclaimers that are necessary to keep advertising from being deceptive.

Likewise, I’ve got no problem with businesses being prohibited from lying about their products. That’s not OK; it doesn’t do anyone any good (well, except for the liars, but even then, it rarely works long term).

But these concepts are pernicious. One restriction or requirement begets another, and before you know it we’re in a thicket of disclaimer requirements and speech prohibitions. And quite apart from the offensiveness of the government mandating what a business can and cannot say, there’s this: as the government finds more and more things it wants to compel businesses to say (or not say), the less meaning the remaining speech has.

So I always love seeing overreaching speech restrictions getting smacked down by the courts. Here are two very recent examples:

Nat’l Assn. of Manufacturers v. SEC (D.C. Circuit, August 2015)

This opinion is an awesome read. If you follow this area, you’ll recall that the D.C. Circuit issued an absolutely loathsome en banc ruling last year, finding that government can basically compel speech on a whim. This particular case – involving the SEC’s controversial “conflicts minerals” disclosure requirement – was then re-heard as a result. In the opinion, the court goes to great length to point out how screwed up the 2014 en banc decision was, but that it must follow it, and then finds a way to STILL find the conflicts mineral rule unconstitutional. It’s almost like a circuit split within a single circuit!

Amarin Pharma v. FDA (So. Dist. NY, August 2015)

The FDA may be responsible for ensuring food and drug safety, and I’m sure there’s plenty of stuff it does a fine job with. But it’s also crazy, mercurial, and far more focused on process than results. It also has a funny thing for the truth: it has long prohibited drug companies and their employees from making truthful statements relating to off-label drug use. In effect, it’s a form of tightly controlled speech: these companies can only use FDA-approved language when referring to their products, at risk of criminal sanctions – even when what they are saying is 100% truthful. Three years ago, the 2nd Circuit started to unravel this issue in the Caronia case, and Amarin follows on that. The fact that the FDA chose to keep fighting this even in the face of Caronia shows how hard litigants must fight against the perniciousness of speech regulation.

Maybe you remember the North Carolina Dental Board case, decided by the Supreme Court earlier this year? Sure, it’s no Hobby Lobby, or Citizens United, or Obergefell –  it’s not likely to cause teeth-gnashing or dancing in the streets, depending on one’s perspective. But the case may end up being even more important to lawyers than it is to dentists, who lost a skirmish with mall-kiosk tooth-whiteners when the Supreme Court ruled against them.

At its most basic, the Dental Board case calls into question the ongoing viability of anti-competitive, unsupervised lawyer regulatory committees – such as the advertising review committees that persist, strangely, in places like Florida. But it may end up meaning more, as the percolating tension between occupational licensing and the first amendment continues to develop.

The ABA, at least, seems to be paying some attention: they’ve created this page tracking developments in case law and commentary following the North Carolina Dental Board decision. If this topic interests you as much as it does me, you’ll want to follow along.

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.[ref]Which is not to say that such communications ARE commercial speech.[/ref]

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.

A recent federal case out of New York provides an interesting look at a subject I’ve written about a number of times: what, exactly, IS “the practice of law?”

It’s a deceptively simple question. For many lawyers, the answer is “anything I work on that’s related to the law.”

And even some federal judges: to whit, the 2014 district court decision in Lola v. Skadden, Arps et al, in which the judge concluded that a lawyer hired to do $25-per-hour document review was practicing law, and thus not eligible to be paid at the overtime rate.

In the district court decision, the court spends a fair bit of time parsing what “the practice of law” means, arriving at a broad definition that draws in a wide range of legal tasks, including many that involve “little to no legal judgment.”

As I’ve pointed out before, there’s a fair bit of tension between the First Amendment and expansive regulation of “the practice of law.” And although such expression-related concerns aren’t at play in a putative class action claim for document review lawyers to get paid overtime, this fundamental limitation on the state’s right to control expressive activity should inform how courts determine the contours of “the practice of law.”

What would those contours look like? My developing thought is that they should look considerably narrower than what most lawyers think of as the “practice of law.” The state’s legitimate interest in protecting consumers and preserving the unique lawyer-client relationship doesn’t need to cover nearly as much ground as the bar has claimed over the years.

So it was refreshing to see the 2nd Circuit reverse the district court decision in Lola v. Skadden, and find that the document review activities alleged in the plaintiff’s case were NOT “the practice of law.”

Why not? Although North Carolina (the state in which the issue arose) – like many states – provides a less-than-helpful definition of “the practice of law,” the Circuit court reviewed a number of decisions dealing with the issue, in North Carolina and beyond, to arrive at the conclusion that “the practice of law” requires the exercise of legal judgment on behalf of a client.  And in this case, the quintessential document review activity of “using criteria developed by others to simply sort documents into different categories” did not involve the exercise of legal judgment.

That seems, to me, to be a good thing. Not everything a lawyer does – even “lawyerly-seeming” stuff – is actually “the practice of law,” subject to state regulation and limitation.

This doesn’t mean, of course, that a lawyer is off the hook for client-impacting problems that arise out of activities that don’t fall under the definition of “the practice of law.” What it DOES mean is that there are appropriate limits on the extent to which the state can call an activity “the practice of law” and proceed to regulate it.

In the case of David Lola, that means time-and-a-half pay for extra hours of document review. For everyone else, it may eventually mean greater access to everyday legal help.

[In Part 2, a look at another recent decision that cuts the other way]

The Association of Professional Responsibility Lawyers is a reputable, some might even say conservative, bunch, made up of law professors, bar counsel, law firm GCs, and attorneys who represent those facing disciplinary proceedings. It’s not an organization that’s going to run off half-crocked and propose radical changes in the rules governing the practice of law.

However, it has done just that – but without the “half-crocked” part.

APRL created a “Regulation of Lawyer Advertising Committee,” and that Committee has just issued its report, which was adopted by APRL’s Board. In the report, the committee concludes:

The practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession.

The report goes on to recommend that the current rules (ABA Model Rules 7.1 – 7.5, with the exception of 7.3 – solicitation – which the Committee deferred on) be replaced with a single rule prohibiting false and misleading advertising. This is a surprisingly bold and sweeping recommendation, and it tracks closely with proposals I have made in the past, as well as Avvo’s recommendations to the ABA’s “Future of Legal Services” commission.[ref]I am a member of APRL, but did not serve on the Lawyer Advertising Committee.[/ref]

If adopted, the APRL recommendations would eliminate all of the nuttiness in the current rules, which chafe so badly against both modern commercial speech doctrine and modern means of communication and advertising. It would help bar counsel focus on those violations that really hurt potential clients, rather than technical violations that offend no on other than competitors looking for an edge. Hell, it would even give leeway for using the term “specialize;” the comments note that attorneys can use this term-that-shall-not-be-named as long as it’s not deceptive to do.

So bravo, APRL. But the real question is – will the ABA and state bars listen to this all-too-sane-and-sensible recommendation?