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Attorney Advice and the First Amendment

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Attorney Advice and the First Amendment Attorney Advice and the First Amendment Renee Newman Knake∗ Abstract An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence. This Article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice. Part II of the Article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application, though both stand as stark examples of the important concerns ∗ Assistant Professor of Law, Michigan State University College of Law. J.D., The University of Chicago Law School (1999). This Article was presented at the 2010 Law and Society Annual Meeting as part of the Heintz Tribute Panel on the Professional Autonomy of Lawyers and the 2010 International Legal Ethics Conference IV held at Stanford Law School, and I wish to thank participants at both events for their helpful insights. The Article also benefited from comments received at a University of Illinois College of Law faculty workshop in August 2010 and the 2010 Michigan State University Junior Scholars Conference. I am especially grateful to Peter Margulies, Judith Maute, and Geof Stone for detailed comments and suggestions on an early draft as well as to Kristi Bowman, Robert Gordon, Michael Lawrence, Larry Solum, Glen Stasewski, and Ben Walther for thoughtful feedback on this project. Tyler Gaastra, Christopher Iannuzzi, and Carrie Waggoner provided excellent research assistance. Finally, I thank the Michigan State University College of Law for support, including the award of a generous summer research stipend. 639 640 68 WASH. & LEE L. REV. 639 (2011) at stake when the government legislatively constricts access to legal advice. Part III of the Article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part IV reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice. Table of Contents I. Introduction .................................................................................. 641 II. Recent Legislative Constraints on Attorney Advice .................... 648 A. Milavetz, Gallop & Milavetz, P.A. v. United States .............. 648 B. Holder v. Humanitarian Law Project .................................... 652 C. Other Constraints on Advice ................................................. 657 III. Why Attorney Advice Warrants First Amendment Protection ..................................................................................... 659 A. Existing Attorney Speech Precedent Supports Strong Protection for Attorney Advice ................................. 664 1. NAACP v. Button ............................................................ 665 2. In re Primus and Ohralik v. Ohio State Bar Association ...................................................................... 668 3. Legal Services Corp. v. Velazquez .................................. 670 B. The Right to Petition and Other Constitutional Protections ............................................................................. 672 C. The Free Speech Value of Advice ......................................... 674 1. Political, Democratic, and Public Interests ..................... 675 2. Professional Identity of the Attorney and Rights of the Client .................................................................... 678 3. The Unique Relationship Between the Attorney and the Client .................................................................. 680 D. Arguments Against Protection Do Not Hold Up ................... 685 1. Advice as Communication Incidental to the Practice of Law ............................................................... 685 2. The Private Nature of Advice ......................................... 687 3. Financial Compensation ................................................. 690 4. The Privilege of the Practice and Officers of the Court ......................................................................... 691 ATTORNEY ADVICE AND THE FIRST AMENDMENT 641 IV. (Un)Constitutional Restrictions on Attorney Advice ................... 692 A. The Easier Cases ................................................................... 694 1. Constitutional Restrictions: Ban on Advice to Engage in Brandenburg-Type Activity or to Engage in Criminal or Fraudulent Activity, Provided an Exception Exists for Good Faith Challenges to Law ...... 695 2. Unconstitutional Restrictions: Ban on Advice to Engage in Legal Activity or to Exercise Political Rights .............................................................................. 698 B. The More Difficult Cases ...................................................... 699 1. Questionable Advice ....................................................... 699 2. Attorney as Advocate Versus Attorney as Advisor ........................................................................... 701 3. Government Lawyers ...................................................... 704 C. Solutions Beyond Bans on Attorney Advice ......................... 706 V. Conclusion .................................................................................... 712 I. Introduction Is the advice an attorney gives to a client protected by the First Amendment?1 If so, in what circumstances and for what reasons may the government constitutionally restrict legal advice? The Supreme Court has not directly addressed this issue, though legal ethics and First Amendment scholars recognize that these questions raise an important debate.2 This Article explores these questions by examining Supreme Court precedent on attorney speech as well as underlying constitutional theory in light of two cases involving federal bans on legal advice taken up by the Court during the 2009 term.3 The Article concludes that the First Amendment protects 1. See U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."). 2. See, e.g., Erwin Chemerinsky, Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 AM. BANKR. L.J. 571, 571 (2005) (using the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to illustrate the constitutional issues that arise in prohibiting attorney advice); see also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1284, 1343 (2005) [hereinafter Volokh, Speech] (observing that the Supreme Court "has never squarely confronted" the First Amendment status of "professional advice to clients"). 3. See infra Part II.A–B (discussing Milavetz, Gallop & Milavetz, P.A. v. United 642 68 WASH. & LEE L. REV. 639 (2011) advice rendered by attorneys to their clients, and that legal advice may be constitutionally restricted in only very limited circumstances. As to the precise contours of those circumstances, the Article’s conclusion takes up some of the easier and more difficult cases in an effort to spark further discussion and analysis in this area. Attorneys render advice.4 Without the ability to render independent and candid legal advice, attorneys and, importantly, their clients have nothing.5 As Professor Stephen Pepper wrote in his seminal article on the lawyer’s counseling at the limits of the law: Our legal system is premised on the assumption that law is intended to be known or knowable, that law is in its nature public information. The "rule of law" as we understand it requires promulgation. And one fundamental, well-understood aspect of the lawyer’s role is to be the conduit for that promulgation. In a complex legal environment much law cannot be known and acted upon, cannot function as law, without lawyers to make it accessible to those for whom it is relevant.6 An attorney’s advice makes law accessible to the client. Yet even greater interests are jeopardized when an attorney’s power to provide counsel is impaired by external regulation.7 The role of an attorney in navigating and, States, 130 S. Ct. 1324 (2010), and Holder v. Humanitarian
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