As I often tell groups of attorneys, state bars don’t have a free hand to regulate attorney speech. Believe it or not, we members of the bar have rights under the First Amendment.
Shocking, I know.
This little impediment hasn’t stopped attorney regulators from trying to stifle attorney speech. A number of states only begrudgingly accept that attorneys have a first amendment right to advertise their services, despite the fact that the unbroken trend – over more than two dozen Supreme Court cases in the last 30 years – is toward greater and greater protection for advertising and other forms of commercial speech.
While the Supreme Court didn’t weigh in on attorney speech in 2012, the year saw three Circuit court decisions that highlight the growing cleft between the free speech rights of attorneys and the struggle within some bars to regulate how their members communicate with the public.
Hayes v. State of New York Attorney Grievance Committee (2nd Circuit)
Want to trumpet the fact that you’ve earned specialist certification from, say, the National Board of Trial Advocacy? Fine, said New York . . . as long as you add a “prominent” disclaimer, reading “The NTBA is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.”
Gee, thanks, New York. You wanna spit on my shoes, too?
Thankfully, the court of appeals had no trouble dismissing this mean-spirited little disclaimer, finding it to be “far more intrusive than necessary, and is entirely unsupported by the record.” The court also tossed the requirement that the disclaimer be “prominently made” as unconstitutionally vague.
Lesson for the bars: disclaimers aren’t panaceas. Use them only where this a good reason, and don’t overreach.
Berry v. Schmitt (6th Circuit)
Look, every litigator knows that it’s not a good idea to publicly criticize a court in which they are representing clients. And there’s no question that attorneys should expect to be disciplined if their off-the-reservation comments interfere with the judicial proceedings, amount to defamation or indicate an unmitigated lack of respect for the law.
But what about comments made by attorneys about courts in which they are not appearing as advocates? Shouldn’t attorneys have the right to criticize the judicial branch of government without fear of discipline?
Yep. Following precedent from the Ninth Circuit, the 6th Circuit found that the Kentucky Bar Association violated the first amendment rights of one of its members when it sent a letter warning him for criticizing a quasi-judicial state legislative ethics commission.
Lesson for the bars: Attorneys, just like every other citizen, have the right to criticize government officials.
Dex Media v. City of Seattle (9th Circuit)
This case had nothing to do with the law of lawyering, but everything to do with how narrow the commercial speech doctrine – and by extension, the ability of bars to regulate attorney speech – has become.
I’ll write a longer post later digging into Dex Media, but the general concept it addressed was how the law should treat communications that have mixed editorial and marketing content. Is such media considered commercial speech, thus subjecting the state to a lower bar when regulating it? Or does its blended nature remove it from the realm of advertising, requiring any state regulation to survive strict scrutiny analysis?
The details will have to wait for my later post, but suffice it to say for now that the court found that the yellow pages aren’t commercial speech. And if the yellow pages aren’t subject to advertising regulation, think about what this means for legal blogs and other forms of attorney communications that have an underlying business development motive but are editorial in nature.
Lesson for the bars: Your rules may be broadly written, but they can’t be applied to many of the new forms of one-to-many communications that attorneys engage in today.
None of these cases are outliers; they all build on the established body of law limiting the ability of the state to regulate speech – even when that speech contains advertising, and even when that speech is engaged in by attorneys. And that’s a good thing both for attorneys looking to communicate more broadly and consumers seeking information about legal services.